(87 App. Div. 224.)

#### BUTTON v. WEAVER.

(Supreme Court, Appellate Division, Fourth Department.

October 27, 1903.)

1. Husband and Wife—Necessaries Furnished Wife—Husband's Liability.

A husband living separate from his wife is liable for necessary medical services furnished the wife, where he made no adequate provision for such necessaries, though he informed the physician prior to the rendition of the services that he would not be responsible for any further services which the physician might render.

¶1. See Husband and Wife, vol. 26, Cent. Dig. §§ 123, 129.

Submission of controversy, under Code Civ. Proc. § 1279, between Lucius L. Button and Simon J. Weaver. Judgment for plaintiff.

Argued before McLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.

Ernest Millard, for plaintiff.

Frederic Remington, for defendant.

SPRING, J.

The facts contained in the submission show that the defendant and his wife lived apart; that the plaintiff is a physician, and attended the wife of the defendant professionally; that the wife was in poor health, the services rendered were necessary, were worth the sum stated, the defendant was charged therefor, and no other physician performed similar services for the wife, and the defendant had not made any provision for medical attendance for her. The husband is liable for actual necessaries furnished to his wife, unless he has made adequate provision for her maintenance, even though they are living separate. Hatch v. Leonard, 165 N. Y. 435-438, 59 N. E. 270. As long as the marriage relation continues, the obligation of the husband to support his wife remains. In this case the defendant left his wife—it may be, for reasons which amply justified his departure. She is still his wife, however. He declined to maintain her in his own household, and must make necessary provision for her elsewhere.

The plaintiff had previously rendered services to the wife on the faith of the payment by the husband. These services were adjusted by a compromise and payment, and the defendant then informed the plaintiff “that he would not be responsible for any further services which the plaintiff might render” the wife. The services in controversy were performed after this notification, and the defendant urges that circumstance as a reason why he is not liable. This position would be impregnable if he had provided suitable medical attendance for her, or given her the means to procure it. A husband living separate from his wife may determine in a large measure in what way his credit is to be pledged, and in what manner the marital duty of providing for his wife is to be fulfilled. If, however, he forbid one from running an account against him for necessaries furnished for.his wife, in order to make the prohibition effective he must otherwise supply her needs, or permit her to. pledge his credit elsewhere. He must perform the obligation in some fair way. In the present case he directed 'the plaintiff to abstain 'from performing services concededly necessary for his wife, but made no other provision for her for this necessity. *389He endeavored to be relieved wholly from the liability resting upon him. This he may not do.

The plaintiff is entitled to judgment for $50, and interest from December 1, 1902, besides costs and disbursements of the action. All concur; WILLIAMS, J., in result only.