De Brauwere v. De Brauwere

• Decision Date: 05 December 1911
• Citation: 203 N.Y. 460,96 N.E. 722
• Parties: DE BRAUWERE v. DE BRAUWERE.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 460

96 N.E. 722

DE BRAUWERE

v.DE BRAUWERE.

Court of Appeals of New York.

Dec. 5, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Alice De Brauwere against Louis De Brauwere. From an order of the Appellate Division (144 App. Div. 521,129 N. Y. Supp. 587), affirming an interlocutory judgment overruling a demurrer to the amended complaint at Special Term (69 Misc. Rep. 472,126 N. Y. Supp. 221), defendant appealed by permission (130 N. Y. Supp. 1109). Affirmed.

The order granting leave to appeal to this court certifies the following question: ‘Does the complaint state facts sufficient to constitute a cause of action?’ The nature of the action and the facts, so far as material, are stated in the opinion.

Lucius L. Gilbert, for appellant.

Albert J. Hiers, for respondent.

WILLARD BARTLETT, J.

In this case the plaintiff, a married woman, who has been abandoned by her husband, sues the husband to recover moneys which she has been compelled to expend out of her separate estate to provide necessaries for herself and her three infant children. Her separate estate consisted of the proceeds of her own labor as a seamstress and janitress and in part of a small sum of money received by way of inheritance from a deceased relative. Since he abandoned his family about September 1, 1904, the defendant has contributed nothing toward their support except the sum of $50, and although the plaintiff has endeavored to procure necessaries for herself and her children upon his credit she has been unable to do so. About the time when the husband left his family, the wife caused him to be arrested on a charge of abandonment, and he was ordered to pay her $6 a week; but he refused to comply with this order, and removed from the state of New York into the state of New Jersey where he resided at the time of the commencement of this action. The defendant demurred to a complaint setting forth the facts substantially as they have been stated. His demurrer was overruled at the Special Term, and an interlocutory judgment was rendered in favor of the plaintiff, which has been affirmed by the Appellate Division.

[1][2] The questions presented by the demurrer were elaborately discussed in both courts, and although both arrived at the same result they reached their conclusions upon somewhat different grounds. ‘A parent is under a natural obligation to furnish necessaries for his infant children; and if the parent neglect that duty, any other person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent.’ Van Valkinburgh v. Watson, 13 Johns. 480, 7 Am. Dec. 395. This rule has long been recognized as the law both in England and this country. A corollary of the rule is the proposition that, where a person has advanced money to a wife deserted by her husband for the purchase of necessaries and the money has been so applied, he can maintain a suit in equity against the husband for the money so advanced. The leading case to that effect in this country is Kenyon v. Farris, 47 Conn. 510, 36 Am. Rep. 86, in which the earlier English decisions are reviewed. The doctrine of that case has found general acceptance, except in Massachusetts, where it has been expressly rejected. Skinner v. Tirrell, 159 Mass. 474, 34 N . E. 692,21 L. R. A. 673, 38 Am. St. Rep. 447. It has been followed without question by the Supreme Court in this state. Wells v. Lachenmeyer, 2 How. Prac. (N. S.) 252; Kenny v. Meislahn, 69 App. Div. 572,75 N. Y. Supp. 81.

[3] We may assume, then, that a husband is liable in equity to one who furnishes necessaries requisite for the support of his deserted wife and infant children, or to one who furnishes the wife with money with which to procure such necessaries. In the present case, however, the money used for procuring the necessaries was chiefly the outcome of the wife's own labors, and the question is whether she can maintain an...