
    Julia H. Sultan, Appellant, v. Simantav Misrahi, Respondent.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Appeal — Judgment absolute — Presumptive liability of husband for wife’s board — Suitable residence.
    Upon appeal from a judgment absolute for the defendant rendered by the Municipal Court of the city of New York, it will be assumed that upon the whole case plaintiff was not entitled to recover as matter of law.
    A husband who without adequate reason leaves his wife and fails to provide her with a home, or means to provide one for herself, is liable for the reasonable value of her board; but the wife’s agreement to pay a certain sum is not conclusive upon the husband. '
    The fact that the husband and wife had lived together in the same house in which she remained after he deserted her, is prima fade evidence that it was a suitable residence with reference to the husband’s means.
    Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, ninth district, borough of Manhattan.
    Simon Sultan, for appellant.
    Goldfogle, Cohn & Lind, for respondent.
   Scott, J.

The justice rendered judgment absolute for the defendant. We must, therefore, assume that he concluded that upon the whole case the plaintiff was not entitled to recover as a matter of law. Mun. Ct. Act., § 249. It appears that defendant voluntarily left his wife, without, so far as we can see, any adequate reason. It was his duty to provide proper support for her according to his means and their status in life. It does not appear that he fulfilled this duty in any way. He did not provide a home for her, or furnish her with means to provide her a home for herself. All that lie offers in his own behalf is an allegation that he told her to look for rooms and that she refused. This she denies, and the history of the previous relations between the parties renders her denial, at least, as probable as his assertion. We are of opinion that the defendant has failed to show that he fulfilled the duty which the law imposes upon him, and that plaintiff was entitled, upon the evidence now presented, to a recovery. 'Of course, all that may be recovered is the reasonable value of the board, and the wife’s agreement to pay a certain sum is not conclusive upon the husband. The fact that the husband and wife had lived together in the house, in which his wife remained after her desertion, is prima facie evidence that it was a suitable residence with reference to the husband’s means. That it was with the wife’s own family with whom she boarded is no reason why the husband should be relieved from his -legal liability.

DtroHto and 'IIacLean, JJ., concur. ¡ ■

Judgment reversed and new trial granted, with costs to appellant to abide event.  