Kenny v. Meislahn

69 A.D. 572, 75 N.Y.S. 81

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Hirschberg, J.:

The complaint avers two causes of action assigned to the plaintiff, one for hoard, maintenance, clothing and other necessaries and money loaned to and for the defendant’s wife on his credit, and the other for medical attendance and services rendered to her on such credit. The complaint, in so far as it expressly covers money loaned, was dismissed upon the trial, but the appellant claims that the necessaries for which a recovery was permitted embrace in large part money actually loaned to the wife, for which her husband cannot be made liable, even although she may have used the money in the purchase of necessaries.

The defendant abandoned his wife shortly after their marriage, and there is no dispute about the fact that he neglected and failed to support her, or that the support furnished by the plaintiff’s assignor was within the defendant’s station in life. As to the account for medical services, etc., no serious question is presented. The only possible doubtful point upon the other count arises from the fact that the wife boarded with her sister, and that the money with which to pay the board and to buy clothing and other necessaries was occasionally given directly to the wife by the plaintiff’s assignor instead of being paid by him personally upon the board bill and in discharge of the purchases. That it was all used in payment of the board and for the purchase of the necessaries is clearly established. The question appears to have been decided in favor of the recovery by the former General Term in the first department in Wells v. Lachenmeyer (2 How. Pr. [N. S.] 252), the court saying: “ It is a question of fact for the jury to determine whether or not such advances were made because of the wife’s necessities, and under such circumstances that the same should be chargeable to the husband. It was not necessary to show that the plaintiff herself made the purchases. If she handed money to the wife for that purpose, that fact is equivalent, we think, to the act of furnishing the necessaries. The jury might well have found on the evidence that some portion at least of the money so advanced was directly applied to the specific object, to wit, the purchase of clothing and of necessaries by the wife.”

The. question was raised upon the trial herein upon motions to dismiss the causes of action entire. Such motions could not have been granted upon the proof, and we think the evidence was abundantly sufficient to support the verdict. It fairly establishes the fact that the support was not furnished upon the credit of the wife, but was solely because of the defendant’s default and was supplied under circumstances which made him chargeable.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.