#### Henry Fischer, Respondent, *v.*Daniel M. Brady, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Husband and wife — Groceries furnished wife — Liability of husband — Wife’s hostility to husband.

Where upon the trial of an action for groceries sold and delivered to defendant’s wife on her order between September 13 and December 3 of the same year, it does not appear that during that period defendant furnished her with anything or made her an allowance reasonably commensurate with her position and needs and whetner the goods were sold on the wife’s credit and whether defendant had supplied his wife for her support with a reasonable and adequate allowance suitable to her mode of living and station of life are fairly left to the jury and resolved against the defendant, a judgment in plaintiff’s favor should be affirmed.

In such an action the wife may be required to answer questions as to her hostile feeling toward her husband.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, twelfth district, borough of Manhattan.

Adams & McIntyre (Jno. J. Adams and Jno. M. Stearns, of counsel), for appellant.

Stem & Sundheimer, for respondent.

Per Curiam.

This is an action for $89.76 for groceries sold and delivered on the order of defendant’s wife. The period covered is from September 13 to December 3, 1904, *402and articles furnished were househould goods of the character usually known as groceries. Mrs. Brady first began to deal with plaintiff in September, having been induced to do so by a salesman through whom she had previously bought similar goods from other grocers by whom he had been employed. Down to October 8, 1904, the defendant occupied, with his wife, the house in which they had lived together for many years and to which the goods sued for were delivered. On October eighth he left the house and he and his wife thereafter lived apart. It did not appear that plaintiff was informed, during the period in question, of the fact that defendant and his wife had ceased to live together. The defendant relies upon two defenses. He claims that it was not made to appear affirmatively that the goods furnished were necessaries. They were however of the kind usually denominated necessaries, because their need is common to all persons, and the amount bought was not excessive considering the apparent position and means of the parties. The second defense to the claim, and the one on which defendant most relies, is his assertion that he supplied his wife liberally with money with which to purchase necessaries. The proof falls far short of his assertion. He constantly reiterates that he was in the habit of paying to her or for bills contracted by her from $900 to $1,500 per month. The proof is that during the period in question he paid' her in cash very much less, and that, of the amounts he did pay her, considerable sums were given specifically to pay her board and expenses while visiting out of the city. It also appears that he had never been in the hahit of making her an allowance or furnishing her with money to pay household bills, but that he went over all the bills himself and either paid them by checks direct to the tradesmen or gave money to the servants with which to pay them. The appellant has furnished us with a most elaborate and interesting brief upon the subject of the immunity of a husband, from paying bills contracted by his wife, when it is made to appear that the husband has himself furnished his wife with necessaries, or has made her an adequate allowance for that purpose. The difficulty with the appellant’s case is that the facts, certainly so far as *403concerns the period covered by the plaintiff’s claim, do not fit the undoubted law to which we have been referred. It does not appear that, during that period, the defendant furnished his wife with anything or made her an allowance reasonably commensurate with her position and needs. The court fairly presented to the jury the question whether the goods were sold on the wife’s credit, and whether the defendant has supplied his wife for her support with a reasonable and adequate allowance suitable to her mode of living and station in life, and upon both questions the jury found against the defendant. The court should have allowed the wife to answer the question as to her hostile feeling toward her husband, but the only effect of an affirmative answer would have been to qualify the effect of her- testimony in the eyes of the jury. There was abundant evidence in the case of the relations between the defendant and his wife, and .of their feelings toward each other, so that the jury can hardly be left in doubt at the end as to the hostility of the wife’s feelings toward her husband.

The judgment, is affirmed, Avith costs.

Present: Scott, Teuax, and Doavling, JJ„

Judgment affirmed, with costs.