Moll v. Greer

Sweedler, J. The action is brought by a niece of the deceased wife of the defendant to recover for alleged necessaries furnished for the decedent. It is alleged in the complaint that the defendant [11] willfully deserted his wife and refused to provide for her. This allegation is denied in the answer, and facts are set forth in the opposing affidavit tending to substantiate that denial. A triable issue is thus raised which necessitates a denial of the motion. For, while it is true that a husband is bound to supply his wife with necessaries, nevertheless, when she voluntarily deserts him he becomes relieved of his duty. (Constable v. Rosener, 82 App. Div. 155; affd., 178 N. Y. 587.) As is stated by the Appellate Term, Second Department, in McDermott v. Books (128 Misc. 17), “ where husband and wife are living together, the wife has implied authority to pledge his credit for necessaries. Where they are separated and living apart, she has no such authority and the burden is upon any one seeking to hold the husband for necessaries furnished to the wife to show that the separation was due to the fault of the husband.” (Citing Constable v. Rosener, supra.) A sharp issue of fact is presented as to who was at fault in causing the separation. Motion for summary judgment, therefore, is denied. Submit order.