Opinion
March, 1904.
W.J. Powers, for the appellant.
J. Harry Tiernan, for the respondent.
This is the second action brought by the plaintiff against the defendant to recover for board furnished to the defendant's wife. The defendant was married in the year 1898 and, as the result of some trouble in his household, his wife left his home in the month of January, 1899. She was harbored by her sister, this plaintiff, who supplied board and lodging to her for a considerable period of time, for which she brought an action in the Municipal Court in the city of New York, and had a judgment, from which the defendant appealed. That judgment this court affirmed at the December term, 1901 ( Ogle v. Dershem, 67 App. Div. 221).
This action was commenced in March, 1903, and by it the plaintiff seeks to recover for the wife's board from February, 1901, to and including January, 1903. The justice before whom this case was tried stated, in deciding it, that upon the evidence before him he was satisfied and found that Maria Dershem, the wife, had no sufficient cause or provocation for abandoning her husband; that she refused to live with defendant and perform the obligations imposed upon her by the marital relations, and that she persistently refused to return to his household, and the causes ascribed for such refusal are fictitious. The wife states that her reasons for quitting the defendant were because of his having inflicted bodily injury upon her, and having addressed vile language to her in the presence of his daughter by a prior marriage. These statements are denied by the defendant, and there appears in the record other evidence tending to corroborate him upon this principal issue litigated, namely, whether the wife was justified in leaving the home her husband had provided for her on account of his conduct.
It is true, as was held in Ogle v. Dershem ( supra), that whether husband and wife were living separate or together the former is ordinarily bound to support the latter. What was said in Keller v. Phillips ( 39 N.Y. 351, 354, 355) doubtless correctly states the rule, as follows: "Ordinarily, he will be presumed to assent to her making such purchases as, in the conduct of the domestic concerns, are proper for her management and supervision; but he is at liberty to withhold such assent, and destroy such presumption, by an express prohibition; and if he do so, no one, having notice thereof, may trust the wife in reliance upon his credit, unless the husband so neglects his own duty, that supplies become absolutely necessary according to their condition."
The recent case of Constable v. Rosener ( 82 App. Div. 155) presents the question arising here, and it was there held by the court, after a careful review of the cases by Mr. Justice INGRAHAM, that the husband is not liable for necessaries furnished the wife, who without just cause abandons him and refuses his offer to support her at his home. We do not understand that this doctrine is seriously questioned. That Hatch v. Leonard ( 165 N.Y. 435) is not an authority to the contrary is pointed out in the Constable case (p. 159); the question before the Court of Appeals in the Hatch case was one of pleading, and we do not believe that the Court of Appeals has held, or intended to hold, that a wife may charge upon her husband liability for her necessaries where she has separated herself from him without any fault on his part, and where he is ready, willing and able to give her a home with him. To the same effect are Blowers v. Sturtevant (4 Den. 46); Catlin v. Martin ( 69 N.Y. 393); 15 Am. Eng. Ency. of Law (2d ed.), 888.
None of the exceptions to the admissibility of evidence presents reversible error. Because the record shows that the principal issue of fact, which has been found by the justice adversely to the plaintiff, is supported by abundant evidence, it is our duty to affirm the judgment, whatever our views might have been upon this issue, had this court been the original trier of the facts.
The judgment should be affirmed.
All concurred, except HIRSCHBERG, P.J., and JENKS, J., dissenting.
Judgment of the Municipal Court affirmed, with costs.