Opinion
October Term, 1903.
Ernest B. Millard, for the plaintiff.
Frederic Remington, for the defendant.
The facts contained in the submission show that the defendant and his wife lived apart; that the plaintiff is a physician and attended the wife of the defendant professionally; that the wife was in poor health, the services rendered were necessary, were worth the sum stated, the defendant was charged therefor, and no other physician performed similar services for the wife, and the defendant had not made any provision for medical attendance for her.
The husband is liable for actual necessaries furnished to his wife unless he has made adequate provision for her maintenance, even though they are living separate. ( Hatch v. Leonard, 165 N.Y. 435, 438.) As long as the marriage relation continues, the obligation of the husband to support his wife remains. In this case the defendant left his wife; it may be for reasons which amply justified his departure. She is still his wife, however. He declined to maintain her in his own household and must make necessary provision for her elsewhere.
The plaintiff had previously rendered services to the wife on the faith of the payment by the husband. These services were adjusted by a compromise and payment, and the defendant then informed the plaintiff "that he would not be responsible for any further services which the plaintiff might render" the wife. The services in controversy were performed after this notification, and the defendant urges that circumstance as a reason why he is not liable. This position would be impregnable if he had provided suitable medical attendance for her, or given her the means to procure it. A husband living separate from his wife may determine in a large measure in what way his credit is to be pledged and in what manner the marital duty of providing for his wife is to be fulfilled. If, however, he forbid one from running an account against him for necessaries furnished for his wife, in order to make the prohibition effective he must otherwise supply her needs or permit her to pledge his credit elsewhere. He must perform the obligation in some fair way. In the present case he directed the plaintiff to abstain from performing services concededly necessary for his wife, but made no other provision for her for this necessity. He endeavored to be relieved wholly from the liability resting upon him. This he may not do.
The plaintiff is entitled to judgment for fifty dollars and interest from December 1, 1902, besides costs and disbursements of the action.
McLENNAN and HISCOCK, JJ., concurred in opinion; WILLIAMS, J., concurred in result only; STOVER, J., not voting.
Judgment ordered for plaintiff for fifty dollars and interest from December 1, 1902, besides costs and disbursements of the action