
    Frederick Loeser & Company, Respondent, v. Louis Diamond, Appellant.
   — Judgment and order reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event. We are of opinion that the trial justice erred in charging the jury, under the circumstances disclosed by the record, that the plaintiff might recover from defendant if they found that the articles purchased were necessaries, unless they believed that defendant had supplied his wife with ample funds for such necessaries. We are of opinion that the record shows that ample funds were supplied by the husband and that there can be no recovery for failure to furnish necessaries. As it is impossible to determine whether or not the jury found for plaintiff upon this ground, a new trial is required. Lazansky, P. J., Young, Kapper and Carswell, JJ., concur; Rich, J., dissents.  