Byrnes v. Rayner , 84 Hun 199 ( 1895 )

MAYHAM, P. J.

The defendant’s wife, a married woman, contracted with the plaintiff to board herself and husband, and keep her horse, at a stipulated price per week. Under such agreement, the plaintiff furnished board to the defendant and wife, and kept the horse of.the latter, and an indebtedness therefor accrued to the plaintiff. The plaintiff rendered a bill to the defendant’s wife, in -her name, for a portion of. such board and horse keeping, which was paid by her. To recover for an unpaid balance arising under the agreement, this action was brought against the defendant, husband of the contracting party, in which, a recovery was had before a justice of the peace,’and on an appeal to the county court the judgment was reversed, from which judgment of reversal the plaintiff appeals to this court.

The only question on this appeal is whether the common-law liability of the husband to support his wife makes him liable on the express contracts of his wife for their joint support, when she is the sole contracting party, and the credit is given to her. By chapter 381 of the Laws of 1884, all disabilities of married women to make valid contracts were removed, and she was invested with all the powers of a feme sole to make contracts and bind herself thereby. When, therefore, she avails herself of the powers and privilege conferred by that statute by making express contract in her own name, even for her necessary support, she would no longer be deemed as acting as agent for her husband in procuring such support, nor would there be any implied agreement on his part, as existed at common law, to pay for such necessaries. The plaintiff, by contracting with the wife, who was in all respects competent to make a valid contract and bind herself, and upon whom she, by her contract, relied for payment, cannot, we think, be permitted to shift the liability upon the husband, who is in no sense a party to the contract. In the absence of any contract with the wife, the common-law liability of the husband for her suitable support still remains. Strong v. Moul (Sup.) 4 N. Y. Supp. 299. And that liability continues unless there is an express contract with the wife. But when the contract is primarily with the wife, and credit given to her by the plaintiff, she cannot now ignore that contract, and shift the liability to the husband. In Travis v. Lee (Sup.) 11 N. Y. Supp. 841, the liability of the husband for necessaries furnished for his family was put upon the express ground that the board was not furnished upon the agreement of the wife, nor the credit given to her. I have found no case since the act of 1884 where the husband was held liable under his common-law obligation when the contract for necessaries was made by express agreement of the wife, and the credit given to her. In Maxon v. Scott, 55 N. Y. 247, which was decided before the act of 1884, the court held that a wife was liable upon her express contract for the board of herself and husband, but her contract at that time had reference to and charged her separate estate. That restriction was entirely removed by chapter 381 of the Laws of 1884. That act seems so completely to habilitate the wife with power to contract as a single female that it would seem a violation of its terms to hold the husband, any more than a stranger, liable upon her contract. We think the judgment of the county court correct, and that it should be affirmed. Judgment affirmed, with costs. All concur.