Augusta Wickstrom, Appellant, v. Samuel W. Peck, Respondent

Augusta Wickstrom, Appellant, v. Samuel W. Peck, Respondent. First Department, March 7, 1913. Husband and wife — action against husband for necessaries furnished wife — complaint. A complaint in an action to recover a balance due for goods sold and delivered to the defendant’s wife, which alleges that between certain dates and at a certain place the plaintiff furnished to the wife at her special instance and request necessaries for lier use, specifying them, of a certain value, and that the same has not been paid, nor any part thereof, except a certain sum, leaving a balance due the plaintiff, for which judgment is demanded, states a cause of action. Under such complaint the plaintiff may give evidence from which the jury may determine that the articles were necessaries. Appeal by the plaintiff, Augusta Wickstrom, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of June, 1912, upon the dismissal of the complaint by direction of the court at the opening on a trial at the New York Trial Term. Arthur F. Gotthold, for the appellant. Sol. Kohn, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Action to recover a balance alleged to be due for goods sold and delivered to the defendant’s wife. At the opening of the trial the defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The motion was granted and plaintiff appeals. As to the sale and delivery of the goods the .complaint alleged: “That between the first day of October, 1901, and thirtieth day of June, 1907, at the City of New York, the plaintiff furnished to Josephine W. Peck, then the wife of the defendant, at the special instance and request of said Josephine W. Peck, necessaries for her use, to wit, gowns and wraps of the value of Fifteen thousand sixty-three and 13/100 ($15,063.13) dollars;” that the same had not been paid, nor any part thereof, except the sum of $8,504, leaving a balance due the plaintiff of $6,559.13, for which sum judgment was demanded. • After issue was joined plaintiff served a bill of particulars and it may be, as contended by the respondent, that all of the articles which were sold and delivered were not, strictly speaking, necessaries. However, that cannot be determined from the complaint, amplifie'd as it is by the bill of particulars. The allegations of the complaint are such that evidende may be introduced for the purpose of enabling the jury to determine whether or not they were necessaries in the sense that they were articles of dress suitable to the wife’s station in life and the husband’s ability to pay therefor. (Rosenfeld v. Peck, 149 App. Div. 663.) If evidence he introduced showing that they were necessaries, then defendant is hable to pay for them (De Brauwere v. De Brauwere, 203 N. Y. 460), unless he can show that the wife was supplied with articles of the same character as those purchased, or that he had given her sufficient money to pay cash for them, or notice if the purchases were made they were on her credit and not his. (Wanamaker v. Weaver, 176 N. Y. 75.) But this, as stated in the Wanamaker and Rosenfeld Cases (supra), is a matter of defense. I am of the opinion that the complaint states a cause of action and for that reason the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event. Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.