
    Edward P. Hatch, Appellant, v. John Leonard, Respondent.
    
      Husband and wife living apart—the husband is liable only on proof that articles sold to the wife were neeessairies.
    
    Where a husband and wife are living separate and apart from each other, the presumption that the wife is the agent of the husband, authorized to charge him with purchases made by her, ceases.
    In an action brought to recover for goods sold to a wife under such circumstances, the complaint should allege that the goods so furnished were necessaries and that the husband did not supply them or furnish his wife with money with which to purchase them.
    Appeal by the plaintiff, Edward P. Hatch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of October, 1898, upon the dismissal of. the complaint by direction of the court after a trial at the New York Trial Term.
    
      Edward W. S. Johnston, for the appellant.
    
      Brainard Tolies, for the respondent.
   Rumsey, J. :

The plaintiff alleged that he delivered to defendant, at his request, certain merchandise, the “sale and delivery.being to, and said request and the promise to pay therefor being made by the wife of defendant, defendant’s agent.” The value of' the goods was alleged, and a promise to pay by defendant, and judgment was asked for the value alleged. The defendant denied the allegations of the complaint,, and for a separate defense set up that the defendant and his wife lived separate and apart from each other* and that he made reasonable allowance to her for her support and that of her family. At the trial plaintiff proved .the delivery of the goods to the wife of defendant and that they were actually used by her for herself and her children. It appeared from the testimony of the plaintiff’s witness that the husband and wife actually lived apart at the time of the sale of the goods and had so lived for some years. The wife’s testimony, which was read upon the trial, stated that she had been so living apart for some years and that her husband supplied her with money from month to month. The precise amount with which' he supplied her 'did not appear by proof. The court held that when it appeared that the husband and wife were living separate and apart from each other, the presumption that the wife was the agent of the husband to charge him for purchases made by her ceased; that the plaintiff could recover for goods •delivered to a wife living separate from her husband, if they were necessaries, and if it appeared that he did not supply them or furnish her with money to buy them, and that the plaintiff, seeking to recover upon that theory of liability, must allege it in his complaint. The- learned justice held that the complaint in this action •did not contain the proper allegations to entitle the plaintiff to prove the liability of the husband for goods sold to his wife while she was living separately, and he, therefore, excluded evidence offered to prove such facts and dismissed the complaint.

The authorities sustain him in his view of the law. (Schouler Husb. & Wife, §§ 117, 119, 120, and cases cited:) Before plaintiff could recover, it was necessary that, he should allege that the articles furnished to the wife were necessaries and that the defendant did not supply them, for it was only in case this was the state of affairs that the husband was liable. The same rule was laid down in an ■action against a father for necessaries furnished to his infant child, which stand upon the same principle. (Goodman v. Alexander, 28 App. Div. 227.) We have examined the rulings made by the court upon the trial and can find no error in them.

The judgment should be affirmed, with costs.

Yah Brunt, P. J., Barrett, Patterson- and Ingraham, JJ., concurred.

Judgment affirmed, with costs.-  