Opinion
December, 1892.
Samuel D. Levy, for plaintiff (appellant).
Ezekiel Fixman, for defendant (respondent).
Careful scrutiny of the evidence, shows that defendant was sought to be held liable in this action upon his wife's alleged implied authority to pledge her husband's credit for necessaries supplied to her at her request. For the defendant, however, it appeared without contradiction that for nearly two years before the alleged necessaries were supplied, husband and wife were living in a state of voluntary separation, and that during all this time the husband had regularly paid his wife a weekly allowance of fifty dollars for her separate maintenance and support.
That, irrespective of whether or not the person who supplies the wife with necessaries had knowledge at the time of the husband's provision for her support, the presumption of the wife's authority to pledge her husband's credit is negatived by the fact of their living apart, and that the tradesman who supplies her under such circumstances, upon the credit of her husband and without his express sanction or approval, does so at his own peril, are propositions too well established by authority to admit of further dispute. See the rule stated and the cases collated in Hare Wallace's notes to Manby v. Scott, Montague v. Benedict and Seaton v. Benedict, reported in Smith's Leading Cases, 436, etc.; Tyler Infancy Coverture, § 221; Schouler's Husband Wife, § 117; Baker v. Barney, 8 Johns. 72; Lockwood v. Thomas, 12 id. 248.
It was incumbent upon plaintiff, therefore, to proceed still further and show that the articles supplied to the wife were not only of the kind usually denominated necessaries, because their need is common to all persons, but that in consequence of the inadequacy of the husband's provision they were actually required for the wife's proper support, commensurate with his means, her wonted living as his spouse, and her station in the community. Schouler's Husband Wife, § 103; Keller v. Phillips, 39 N.Y. 351; Arnold v. Allen, 9 Daly, 198; Blowers v. Sturtevant, 4 Denio, 46. This, however, the evidence wholly failed to establish.
Daubney v. Hughes, 60 N.Y. 187, seemingly cited by appellant's counsel in support of his contention of defendant's liability, has no application to the question here involved. In the case cited, the husband was adjudged liable for his wife's support, upon his express promise, notice of the revocation of which was not brought to the promisee's knowledge.
Judgment affirmed with costs.
GIEGERICH, J., concurs.
Judgment affirmed.