Opinion
November, 1904.
S. Livingston Samuels, for appellant.
Meyer Greenberg, for respondents.
The recovery for medical services rendered and medicines furnished to the defendant's wife, while she was living separate and apart from him, is founded upon no proof that the separation was due to the husband's fault, and, moreover, evidence offered by him to show that there was no cause for her refusal to live with him, was excluded by the court.
In such a case the husband's liability depends upon the question of cause for the separation. Constable v. Rosener, 82 A.D. 155; affirmed on opinion below 178 N.Y. 587. The authority cited favors the proposition that the burden of showing the husband's fault is on the plaintiff. If so, there was a failure of proof; if not, the exclusion of defendant's evidence denied him the benefit of a valid defense, the proof being relevant to the denial of the wife's agency.
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.
FREEDMAN, P.J., and FITZGERALD, J., concur.
Judgment reversed, and new trial ordered, with costs to appellant to abide event.