Constable v. Rosener

Appellate Terms of the Supreme Court of New York

Constable v. Rosener

38 Misc. 784, 78 N.Y.S. 835

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1902

StatusPublished

This text of 38 Misc. 784 (Constable v. Rosener) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Constable v. Rosener, 38 Misc. 784, 78 N.Y.S. 835 (N.Y. Ct. App. 1902).

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Opinion

MacLean, J..

In the autumn of 1901 the plaintiffs furnished the spouse of "the defendant certain articles necessary and proper for her use. Evidence' was given to show that she had left her husband four years previously, had refused to return or to maritally recognize him when he went to her abode, and that at the time of receiving the goods she was having or about to have her name changed by order of the court, without altering any other relation to the defendant. The learned trial justice found that the wife abandoned the husband and gave judgment for the defendant. This was error. “ Notwithstanding the separation of husband and wife, the former is bound to support the latter * * * in the absence of either an agreement or a decree of the court relieving him from that burden.” Opinion of the Court, 165 N. Y. 438. This may not be treated as obiter as the defendant would have it. It is stated as the major premise in the reasoning of the opinion and is entitled to respect as a distinct exposition of the law of this State by its court of last resort. The judgment should be reversed.

Ebeedman, P. J., and Gildebsleeve, J., concur.

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

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MacLean, J..

In the autumn of 1901 the plaintiffs furnished the spouse of "the defendant certain articles necessary and proper for her use. Evidence' was given to show that she had left her husband four years previously, had refused to return or to maritally recognize him when he went to her abode, and that at the time of receiving the goods she was having or about to have her name changed by order of the court, without altering any other relation to the defendant. The learned trial justice found that the wife abandoned the husband and gave judgment for the defendant. This was error. “ Notwithstanding the separation of husband and wife, the former is bound to support the latter * * * in the absence of either an agreement or a decree of the court relieving him from that burden.” Opinion of the Court, 165 N. Y. 438. This may not be treated as obiter as the defendant would have it. It is stated as the major premise in the reasoning of the opinion and is entitled to respect as a distinct exposition of the law of this State by its court of last resort. The judgment should be reversed.

Ebeedman, P. J., and Gildebsleeve, J., concur.

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

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Bluebook (online)

38 Misc. 784, 78 N.Y.S. 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constable-v-rosener-nyappterm-1902.

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