Opinion
April, 1910.
Eugene L. Bushe, for defendant, for motion.
Hays, Hershfield Wolf, for plaintiffs, opposed.
Plaintiffs sue for necessaries alleged to have been furnished to defendant's wife between November 16, 1908, and January 21, 1909. Among other defenses, it is claimed that the articles furnished were not necessaries; that the wife had been amply supplied by her husband with funds, and also that, since December, 1908, the defendant's wife lived separate and apart from him, receiving a sufficient weekly allowance that he provided.
Plaintiffs applied to examine defendant before trial (in Nassau county) seeking to prove that the articles delivered were necessaries, and that defendant did not supply his wife with money for the purchase thereof, nor with the necessary clothing suitable to her station in life. The affidavit upon which the order for defendant's examination was granted further stated that the defendant has been sojourning in North Carolina and that deponent has no means of knowing if defendant will be within this State when the case comes on for trial.
While the proof of delivery of the articles may generally make out a sufficient case for the plaintiffs, leaving the husband, in defense, to show that there was no necessity for the credit because the wife was amply supplied (Wanamaker v. Weaver, 176 N.Y. 75, 82), this does not seem to be the rule where they are living separate and apart. Constable v. Rosener, 82 A.D. 155, 158; affd., 178 N.Y. 587. In the case of such a separation, the burden is on the plaintiffs to show that the defendant did not suitably provide for his wife.
In view of the defense here that the wife was living separate from her husband, I think plaintiffs are entitled to examine the defendant in order to establish their affirmative case as to the articles furnished after the separation; and also to avoid this defense as to those claimed to have been delivered between November 16, 1908, and the separation in December. Schweinburg v. Altman, 131 A.D. 795.
The motion to vacate the order for the examination of defendant is, therefore, denied, with ten dollars costs.
Motion denied, with ten dollars costs.