Wickstrom v. Peck

Scott, J.: This is an action by a tradeswoman against a husband for dresses supplied to defendant’s wife, and which in the complaint are alleged to have been necessaries. [609] The complaint was dismissed upon the ground that it appeared that plaintiff had given credit exclusively to the wife. The evidence upon which the ruling was made was to the effect that the plaintiff had kept the account in the name of defendant’s wife, had sent bills to her, and such payments as had been made had been by the wife. We do not think that upon this evidence the court should have held, as matter of law, that the credit was given exclusively to the wife. Whether it was or not was a question of fact which should have been submitted to the jury. (Wanamaker v. Weaver, 176 N. Y. 75; Rosenfeld v. Peck, 149 App. Div. 663.) Evidence was offered and excluded which might have had a bearing on the question. We also think that there was a question for the jury as to whether or not the articles furnished were not in a legal sense necessaries. The question as to what are and what a,re not necessaries, in a case of this kind, depends in large measure upon the scale and style of living adopted by the husband. The word “necessaries” is an elastic term not confined to clothing to cover the body and to food to sustain it. (Wilder v. Brokaw, 141 App. Div. 811.) “It has always been held that those articles were to be considered necessary which were suitable to the degree and condition of life of the person to whom they were furnished, having regard to the estate of the infant or the husband; and that it was not to be confined to those which are required to sustain life or to preserve decency.” {Hamilton v. Lane, 138 Mass. 358.) “ The obligation of the husband to provide his wife and children with the necessaries of life suitable to their condition is to be measured with reference to his pecuniary ability, honestly exercised, or his pecuniary resources; that is to say, those things might properly be deemed necessaries in the family of a man of generous income or ample fortune which would not be required in the family of a man whose earnings were small and who had saved nothing. The husband is bound to provide for his wife and children c whatever is necessary for their suitable clothing and maintenance, according to his and their situation and condition in life.’ ” (De Brauwere v. De Brauwere, 203 N. Y. 460, 464, citing Keller v. Phillips, 39 id. 351, 354.) [610] The defendant’s own evidence in the principal case showed that during the time that he and his wife lived together, and during the years covered by plaintiff’s claim, he had had an annual income of about $40,000 and had expended for the living expenses of himself and wife (they had no children) from $25,000 to $30,000 a year; that they had horses and carriages and automobiles; had resided in fashionable and expensive hotels in the city of Hew York and had made trips to Europe and to various watering places in this country. Under these circumstances, although the debts incurred by the wife for clothing might seem large to men of moderate means, it does not follow that a jury might not find that the clothes purchased were no more numerous or expensive than were suitable according to the situation in life of defendant and his wife as established by him. If so they were necessaries within the legal acceptation of that term, and the husband was liable to whomsoever furnished them to the wife, no matter to whom the credit was originally extended. (De Brauwere v. De Brauwere, supra.) The husband did not avail himself of the opportunity to show (if he could) that his wife had already been furnished by him With articles of the same character as those furnished, or that he had supplied her with sufficient means to meet her necessities. These were matters of defense. (Wanamaker v. Weaver, 176 N. Y. 75; Wickstrom v. Peck, 155 App. Div. 523.) The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. McLaughlin, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.