CONSTABLE ET AL.
Appeal from Appellate Term.
Action by Frederick A. Constable and others against Henry Rosener. From a judgment of the Appellate Term (78 N.Y.S. 835) reversing a Municipal Court judgment in favor of defendant, he appeals. Reversed.
Henry Thompson, for appellant.
A. Epstein, for respondents.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and INGRAHAM, JJ.
This action was commenced in the Municipal Court of the city of New
York, and resulted in a judgment in favor of the defendant.
The complaint, which was in writing, alleged that between the 14th and 16th
of October, 1901, the plaintiffs sold and delivered to the wife of the
defendant herein, at her special instance and request, necessities for her use,
of the value and amounting to the agreed price of $209.95. The answer denies
knowledge or information sufficient to form a belief as to this allegation, and
alleges as a further and separate defense that in the month of October, 1897,
the defendant's wife voluntarily and without cause deserted and abandoned the
defendant, and refused and has ever since refused to return and live with him,
although the defendant urged her to do so, [81 N.Y.S. 377] and has at all times
been ready and willing to support and provide for her if she would return and
live with him; that the defendant's wife has not, nor has she ever had since
the said desertion and abandonment, any authority to purchase goods for the
defendant or upon his credit; and that she had no authority whatever from the
defendant to contract the indebtedness alleged in the complaint.
Upon the trial before the justice, it was conceded that the plaintiffs sold and delivered to the wife of the defendant goods, wares, and merchandise of the value and amounting to the agreed price of $209.95; that these articles had not been paid for; and that the articles were necessaries and suitable to her station in life. Upon this concession the plaintiffs rested, whereupon the defendant testified that his wife left him in October, 1897, when she then abandoned him; that after that abandonment he asked her to return and live with him many times; that she went to Paris when she left him; that he went to Paris after her, and asked her to return and live with him; that she refused to allow the defendant to remain with her in the same room in the hotel where she was stopping, and refused to return with him, whereupon he returned to New York; that she has lived away from him continuously from October, 1897, without his consent; and that he never gave her any authority to purchase goods on his credit, and never had an account with the plaintiffs. In rebuttal the defendant's wife was called by the plaintiffs, and testified that in October, 1897, she was living with the defendant at the Hoffman House, in this city, when she left for Europe; that the defendant provided for her after she left until a year before the trial, when he refused to send her any more money; that the cause of her leaving him was
that she could not respect him; that the reason for this was that the defendant was accused of being a thief, and that he accepted the accusation; that the witness asked the defendant to defend his name; that the defendant obtained money from his wife's father to send him to Europe, and then refused to give his wife the money; that he had pawned his wife's jewelry to use it in his business, and gave his wife none of the money realized therefrom, and that the defendant never asked her to return to him; that the witness came to New York from Paris in December, 1900, with her father, but did not see her husband; and that before that time the defendant had sent her $100 per month. The defendant then denied that he had ever received any money from his wife's father; that he ever pawned his wife's jewelry or ever got any money for it; testified that he sent her money from time to time until December, 1900, hoping that she would return and live with him; that he stopped sending her money when she came to New York without visiting him, and then he made up his mind that she would not return. Upon this testimony the court rendered judgment for the defendant, finding that the defendant's wife left her husband-abandoned him-without cause, and that therefore the defendant was not liable. The Appellate Term reversed this judgment, and the defendant appeals.
The liability of the husband for debts incurred by the wife is based upon the ordinary principles of agency. This is the universal rule in this country and in England. In Debenham v. Mellon, 6 App. [81 N.Y.S. 378] Cas. 24, the question came before the House of Lords, when Lord Selborne stated the principle upon which such a liability is imposed:
" The point determined was one of much importance, namely, that the question whether a wife has authority to pledge her husband's credit is to be treated as one of fact, upon the circumstances of each particular case, whatever may be the presumption arising from any particular state of circumstances. That principle is now controverted; and the first question before your lordships is whether the mere fact of marriage implies a mandate by law making the wife, who cannot herself contract, unless so far as she may have separate estate, the agent in law of her husband, to ...