McDermott v. Books

128 Misc. 17, 217 N.Y.S. 181, 1926 N.Y. Misc. LEXIS 1066

Opinion

Per Curiam.

Judgment unanimously reversed upon the law, with thirty dollars costs to appellant, and complaint dismissed, with appropriate costs in the court below.

Where a wife has left her husband and is living apart from him without justification and he maintains a home where he is wEling to support her, he is not liable even for necessaries furnished to her. Where husband and wife are living together, the wife has implied authority to pledge his credit for necessaries. Where they are separated and living apart, she has no such authority and the burden is upon any one seeking to hold the. husband for necessaries furnished to the wife to show that the separation was due to the fault of the husband. (Constable v. Rosener, 82 App. Div. 155; affd., 178 N. Y. 587; Buxbaum v. Mason, 48 Misc. 396; Altman & Co. v. Durland, 185 App. Div. 114; Bostwick v. Brower, 22 Misc. 709.)

Present, Cropsey, MacCrate and Lewis, JJ.