Schullhofer v. Metzger

7 Rob. 576

• Court: The Superior Court of New York City
• Decided: December 15, 1867
• Status: Published

Opinion

Jones, J.

If the proposed amendment constituted a valid counter-claim, I should not hesitate to allow it. But it clearly does not. A husband is not necessarily liable for moneys advanced to or for the benefit of the wife.

When a party claims to hold a husband liable for money advanced to or for the benefit of the wife, he should in his pleading either aver the money to have been loaned and advanced to the husband, or that it was loaned and advanced to the wife or for her benefit, at the husband’s request, or with his assent; or that he subsequently acquiesced ; or that she was the agent of the husband in procuring the advances; or else he should allege such facts as that an implied agency from the husband to the wife may arise therefrom.

The proposed amendment merely alleges that the defendant is indebted to the plaintiff in a certain sum “for moneys paid, laid out and expended for the benefit of the wife of the defendant.” This is insufficient.

The present motion must1 be denied, with $5 costs; but as the defendant may be able to make an answer which will show on its face that the husband is liable for the items mentioned in the account presented, this denial is without prejudice to.a motion for leave to serve a proposed amended answer showing such liability, on condition of moving within five days after service of the order to be entered hereon, and paying said $5 within that time.