#### Abram Ellenbogen, Plaintiff, *v.*Wallace W. Slocum and Anna B. Slocum, Defendants.

(City Court of New York, Special Term,

March, 1910.)

Husband and wife: Rights, duties and liabilities of husband — Liability of husband for goods and necessaries furnished to wife: Actions — Pleading — Complaint —Action for necessaries.

Judgment — Rendition—At particular stages of the action — Motion for judgment on the pleadings.

Questions of law and fact — Liability of husband for necessaries.

A motion for judgment on the* pleadings, under section 547 of the Code of Civil Procedure, is to obviate the delay in waiting for a case to be reached on the calendar for trial.

It is a question of fact whether advances to a wife living with her husband were made because of her necessities and under *612such circumstances that the same should be chargeable to her husband.

In such a casé, the husband, when sued for necessaries furnished the wife, may show in defense that she was amply supplied with articles of the same character as those sued for, or that she had been furnished by him with money to pay therefor.

.The common law liability oí a husband for the suitable support of his wife obtains in the absence of an express contract between the wife and a third person for furnishing articles necessary for her suitable support; and, where there 'is such a contract under which credit is given solely to the wife, the other party thereto cannot ignore it and shift the liability to the husband.

Where the complaint, in an action against a husband and wife for necessaries furnished to her upon her sole credit, is silent as to any credit given to the husband except an allegation that defendants are justly indebted to plaintiff, the husband’s motion for judgment on the pleadings will be granted under section 547 of the Code of Civil Procedure.

Motion for judgment on the pleadings.

Churchill & Marlow, for plaintiff.

Frederick P. Schenck, for defendants.

Finelite, J.

This is a motion for judgment on the pleadings under section 547 of the Code of Civil Procedure. The action is predicated, as appears from the complaint, for money loaned to the defendant Anna B. Slocum for the purchase of necessaries by the plaintiff’s assignor. The complaint alleges two separate and distinct causes of action. First, to recover the sum of $200, with interest from the 21st day o'f December, 1905; second, to recover the sum of $300, with interest from the 30th day of December, 1905. ÜSTowhere does it appear upon the face of the complaint that the said money was loaned to the husband as codefendant, but by the sixth paragraph of the first cause of action and in the ninth paragraph of the second cause of action it is alleged that the defendants are now justly. indebted to the plaintiff in the sums of $200 and $300, respectively. The defendant Wallace W. Slocum interposes an answer to the complaint admitting that the defendants were husband and wife; that demand was made upon *613him. for the amounts aforesaid; third, alleging affirmatively that he furnished his wife with all necessaries and such cash as was required to pay for such necessaries as were suitable for her position. Section 547 of the Code of Oivil Procedure reads: “If either party is entitled to judgment upon the pleadings, the court may upon motion at any time after issue joined give judgment accordingly.” This section of the Code was added by chapter 166 of the Laws of 1908. By this section a motion made upon the pleadings was to obviate a delay in waiting for the case to be reached upon the calendar for trial, thus disposing of the action immediately upon issue joined. See Mitchell v. Dunmore Realty Co., 60 Misc. Rep. 564. The plaintiff relies upon the ease of Kenny v. Meislahn, 69 App. Div. 572. In that case the defendant had abandoned his wife and neglected to support her. The question was whether the plaintiff, who had advanced money to the defendant’s wife with which to pay board which the wife owed, could recover against him for the money so advanced. The question arose upon a motion to dismiss made at the time of the trial. The motion was denied. Epon appeal to the Appellate Division from the judgment entered in favor of the plaintiff, Hirschberg, J., in writing the opinion for the court affirming the judgment, says: “ The question appears to have been decided in favor of the recovery by the former General Term of the First Department in Wells v. Lachenmeyer, 2 How. Pr. (N. S.) 252, wherein the court says: *‘*It is a question of fact for the jury to determine whether or not such advances were made because of the wife’s necessities, and under such circumstances that the same should be chargeable to the husband. It was not necessary to show that the plaintiff herself made the purchases. If he handed money to the wife for that purpose, that fact is equivalent, we think, to the act of furnishing the necessaries. The jury might well have found on the evidence that some portion at least of the money so advanced was directly applied to the specific object, to wit, the purchase of clothing and of necessaries by the wife.’ ” This ease was decided in the March term, 1902, in Wanamaker v. Weaver, 176 N. Y. *614*75,*reversing a judgment in favor of the defendant entered upon a verdict and granting a new trial (73 App. Div. 60), in an action brought to recover the purchase price of goods sold by the plaintiff to the defendant’s wife in the city of Philadelphia without defendant’s knowledge or consent. The facts in that case show that the defendant and his wife resided in the city of Rochester, and at the time the goods were purchased lived together as husband and wife. It was claimed on behalf of the defendant that while the goods might ordinarily be deemed necessaries they were not in fact such, for the reason that the defendant lived on his salary of $2,000 per year, out of which he delivered to his wife $1,500 in monthly installments of $125 with which to supply his table and purchase her necessary wearing apparel. At page 82 of this case Haight, J., writing the opinion, says: “ Schouler on Husband and Wife (sec. 107) sums up the authorities upon the subject as follows: ‘Hot only is the husband permitted to show that articles in controversy are not such as can be considered necessaries, but he may show that he supplied his wife himself, or by other agents, or that he gave her ready money to make the purchase. This is on the principle that the husband has the right to decide from whom and from what place the necessaries shall come, and that so long as he has provided necessaries in some way, his marital obligation is discharged, whatever may be the method he chooses to adopt. Accordingly, in the class of cases which we are now considering, namely, where the spouses dwell together, so long as the husband is willing to provide necessaries at his own home he is not liable to provide them elsewhere. In general, while the spouses live together, a husband who supplies his wife with necessaries suitable to her position and his own, is not liable to others for debts contracted by her on such an account without his previous authority or subsequent sanction.’” Citing cases. The conclusions reached in these cases are in accord with the rule as stated by Schouler and some of the decisions alluded to in this State, and we incline to the view that the rule recognized by them is a safer and better rule to follow. It compels the husband *615to pay in a proper case, and at the same time affords him some financial protection against the seductive wiles exercised by tradesmen to induce extravagant wives to purchase that which they really do not need. We do not participate in the alarm which appears to have possessed the learned justices of the Appellate Division on account of the possible inquisitorial examination to which the wives may be subjected. The anxiety of tradesmen to sell will be sufficient to protect them from any improper “ inquisitorial examination.” If a wife was 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. But when she goes to a stranger, with whom she has never traded before, and where subsequently there is no implied authority on the part of the husband to give her credit, and seeks to purchase upon her husband’s credit, it is but reasonable and proper that she disclose to the merchant her authority therefor or for the merchant to request such disclosure. And where in such a case the husband, in defense to the action, says the wife was amply supplied with articles of the same character as those purchased, or that she had been furnished with ready money with which to pay cash therefor, the question of her agency is one of fact and is not a conclusion of law to be drawn from the marital relations. Martin v. Oakes, 42 Misc. Rep. 201. In the absence of any contract with a wife the common law liability of a husband for the suitable support of his wife still remains, and such liability continues unless there is an express contract between the wife and the person for furnishing the articles necessary for her suitable support (Strong v. Moul, 22 N. Y. St. Repr. 762), and that liability continues unless there is an express contract with the wife, and, where the contract is primarily with the wife and credit is given to her by the plaintiff, he cannot now ignore that contract and shift the liability to the husband. Byrnes v. Bayner, 84 Hun, 199. It appears from the complaint on the motion before me that credit was given solely to the *616defendant Anna B. Slocum, and not to the defendant Wallace W. Slocnin, her husband, and this suit is against her as defendant on that theory. The complaint is silent as to any credit given to the husband of the codefendant, with the exception, as already pointed out, under paragraph 6 • of the first cause of action and paragraph 9 of the second cause of action, alleging that the defendants are now justly indebted to the plaintiff. These allegations in said paragraphs, standing by themselves, are solely a question of law and not a question.of fact. The money having been advanced to the wife upon her own contract, although the same may be for necessaries, it cannot he implied that she acted as the agent for the codefendant, her husband, and under no circumstances, under the decisions cited, can the plaintiff succeed in this action against the husband. Motion for judgment on the pleadings must he granted, with costs. Settle order on one day’s notice.

Motion granted.