VIRGINIA P. G. BENJAMIN, Respondent,
HENRY R. BENJAMIN, Appellant.
APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered March 12, 1953, in New York County upon a verdict rendered at a Trial Term (WALTER, J.).
Paul W. Williams of counsel (James A. Fowler, Jr., Thomas C. Mason and Mary M. Wenig with him on the brief; Cahill, Gordon, Zachry & Reindel, attorneys), for appellant.
Arthur Garfield Hays of counsel (Osmond K. Fraenkel, Samuel Hartman and Daniel J. Madigan with him on the brief; Hays, St. John, Abramson & Schulman; Hartman, Sheridan & Tekulsky, attorneys), for respondent.
Plaintiff, who is the wife of defendant, has had judgment in her favor for $14,549.02 entered on the verdict of a jury for necessaries for a part of a year--the first three months of 1952. The plaintiff and defendant separated in 1949 'without fault of either party' and have been living separately by mutual consent.
Defendant had a net total income after taxes in 1951, of $180,158 and in 1952, $130,538. The necessaries for which plaintiff claims expenditure from January 1 to April 2, 1952, and for which she seeks reimbursement from defendant consisted of food and drink, wages of servants, the purchase of an automobile and of furnishings for her apartment, the extent and need for which were questions for the jury and were given to the jury under proper instructions.
Two of the largest items, i.e., $4,247.14 for the automobile and $4,113.06 for apartment furnishings claimed to have been made in the first quarter of 1952, we would not expect to recur frequently. The total of these expenditures as claimed by plaintiff is $16,456.99. Plaintiff's proof indicates that while the parties were together they lived at the rate of over $100,000 a year. Defendant in 1952, was worth between $5,000,000 and $6,000,000.
It was stipulated between the parties that defendant is entitled to an offset of $2,400 which is the amount he paid plaintiff in cash during the period here in question.
The main issue is whether plaintiff must also credit the defendant with a ratable proportion of the net income after taxes which she received in 1952 from capital funds provided for the wife by the husband before the separation. The total amount of these capital funds is $445,000, about half of it placed in trust by the defendant as part of an antenuptial agreement and the rest given to plaintiff during the marriage. Plaintiff's net income from this source after taxes was $15,800. Defendant's contention on appeal is that plaintiff was required to give credit for one fourth of this amount or $3,950 against her claim for necessaries.
The court charged the jury that on this question the defendant had the burden of proof to show that in providing the funds which produced the income it was the intention of the parties that it was to be used in supplying necessaries. Defendant's requests to charge on this subject were twofold.
He asked the court to say that it might be regarded as a question of fact whether plaintiff expected that her husband would repay her for disbursements for necessaries in the light of her practice of using the income derived from the funds provided by the husband for necessities during the time they lived together, apparently with the implication that she had the burden of showing the expectation that such income would not be used for necessaries.
But defendant also asked flatly that the court instruct the jury that it must deduct from any amount found to have been expended for necessaries, the portion of the net income derived from the money provided by defendant. Since the court refused both requests of defendant he is ...