MOTION by the plaintiff, Solomon Rosenfeld, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at the New York Trial Term in January, 1909.
Max D. Steuer, for the plaintiff.
Sol. Kohn, for the defendant.
This is an action by a tradesman to recover for goods sold to defendant's wife. At the close of the whole case the complaint was dismissed. The exceptions raised the question whether the case should not have been submitted to the jury.
At the time of the purchase the defendant and his wife were living together in the city of New York. The defendant was a man of means, enjoying a large income and had been in the habit of making his wife a liberal allowance for her personal uses, and occasionally supplementing the usual allowance by giving her other sums of considerable size.
The articles of clothing for which suit is brought were of the same general character as those which the wife, presumably with her husband's knowledge, had been in the habit of buying and wearing. They certainly were not necessaries, strictly speaking, but we think that a question of fact was presented as to whether or not they were necessaries in the sense that they were articles of dress suitable to the wife's station in life, her husband's means and their standards of living which defendant himself had adopted and approved.
The evidence presented on behalf of plaintiff would have justified a finding that the goods were of a kind which had theretofore been used by the wife, and were appropriate to the station in life and the wonted style of living of defendant and his wife. It was then open to the husband to show, if he could, that the wife was amply supplied with articles of the same character as those purchased, or that she had been furnished with sufficient money to pay cash therefor. ( Wanamaker v. Weaver, 176 N.Y. 78-82.) This, however, is a matter of defense. In our opinion it was for the jury to say whether or not the articles furnished were necessaries in the sense in which that word is used in a case like the present, and if so, whether or not the husband had succeeded in showing the facts relied upon in defense. It was error to decide either of these questions as matter of law.
Another question in the case is whether or not the goods were sold on the faith of the husband's credit or on that of his wife, and here again, as we consider, the question was one of fact for the jury. While the bill was made out to the wife the plaintiff testified in effect that he trusted her upon the faith of the defendant's credit, and while plaintiff himself had not previously sold to the wife on credit, it appeared that he had formerly been connected with an establishment from whom the wife had been in the habit of purchasing similar articles on credit, and whose bills had been paid. 'If a wife is going to a merchant to trade, with whom she is acquainted and with whom she has been accustomed to trade upon the credit of her husband, she may still continue to do so until the husband gives notice prohibiting the merchant from longer giving credit to her.' (Wanamaker v. Weaver, supra.) We consider
that, under the circumstances, a jury might find that the husband had impliedly authorized his wife to purchase, on credit, goods of the character that she had been in the habit of buying.
The proof that long after the purchases in question the husband had inserted in a Paris newspaper a notice that he would no longer be responsible for his wife's bills was properly rejected, and the plaintiff can take nothing by his exception thereto.
We think, however, that the exceptions must be sustained and a new trial ordered, with costs to plaintiff to abide the event, for the error of the court in refusing to submit to ...