Ogden v. Prentice , 33 Barb. 160 ( 1860 )

By the Court,

Balcom, J.

The defendant was not a creditor of Miss Ogden at the time she made the assignment to the plaintiffs. The assignment was made the 15th day of June, 1859, and the defendant did not recover his judgment for costs, in the county court, against Miss Ogden, until the 13th day of September in that year. The judgment being for costs only it cannot be said that Miss Ogden was a debtor of the defendant before it was actually rendered. The defenclant could not attack the assignment, in this action, on the ground that it was made by Miss Ogden with the intent to hinder, delay and defraud her creditors. He could attack it only by seizing some of the assigned property on execution, or by an action brought for that purpose. The assignment transferred to the plaintiffs the account Miss Ogden had. against the defendant for the two bonnets in question. It was good as between the parties to it, even though fraudulent as against the creditors of Miss Ogden. (Waterbury v. Westervelt, 5 Selden, 598.) The plaintiffs therefore properly brought this action in their own names. (Code, § 111. 14 Barb. 533. 27 id. 178. 4 Kern. 555.) It was not necessary that the plaintiffs should give the defendant notice of the assignment by Miss Ogden to them, to prevent the defendant using his judgment against Miss Ogden as a set-off, or other defense in this action. It is true that section 112 of the code declares that the action by the assignee of a thing in action shall be without prejudice to any set-off or other defense existing at the time of, or before notice of, the as signment; and that this section qualifies section 150 of the code. (See 20 N. Y. Rep. 86, 98.) But, as section 112 has been construed by the court of appeals, in the case of Beckwith v. The Union Bank of New York, (5 Seld. 211,) it does not change the former rule as to the substantial rights of parties to an assignment, or of other persons who are affected thereby. The defendant did not do any act subsequent to the assignment by Miss Ogden to the plaintiffs that he would not have done if he had received notice thereof. He would have recovered his judgment against Miss Ogden if he had had notice of her assignment to the plaintiffs, precisely as he did without notice thereof. If he had paid Miss Ogden for the two bonnets, without notice of the assignment, he would have been protected by section 112 of the code. But the judgment he recovered against her for costs without notice of her assignment, is not a set-off or other defense in this action, within the meaning of that section of the code.

. The law is that “ the husband is bound to provide his wife with necessaries suitable to her situation and his condition in life ;° and if she contracts debts due for them during cohabitation, he is obliged to pay those debts ; but for anything beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted. He may still be liable, though the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort.” (2 Kent’s Com. 9th ed. 133, 134.) “ Hecessari.es, besides board and lodging, are such articles as comport with the wife’s situation in life and her husband’s fortune, and are usually worn or joossessed by persons in similar conditions of life.” (Bright on Husband and Wife, vol. 2, p. 7.) What are to be considered necessaries in each particular case, is a point to be decided by the jury.” (Id. p. 8.) I do not think the defense by the defendant, of the action brought against him by Miss Ogden, was notice to her that he-would not permit his wife to purchase any necessary clothing for herself on his credit. His answer in that action was only a general denial; and it seems that his only position on the trial thereof was that Miss Ogden must establish a cause of action against him for the price of the winter bonnet. It is clear that she had no notice of the defendant’s unwillingness to allow his wife to buy bonnets upon his credit, unless his defense of that action was such a notice. How by considering this fact with the other evidence in the case, and applying the above mentioned rules of law thereto, the verdict of the jury, holding the defendant liable for the price of the two bonnets in question, is conclusive upon him.

But the defendant was liable to'pay for the bonnets, for the reason, that he knew his wife had them and saw her wear them, without expressing any disapprobation. The law is that c the husband will be liable when the goods purchased by his wife, (to the payment for which he would not be liaMe,) come to her or his use with his knowledge and permission, or when he allows her to retain and enjoy them.” (Bright on Husband and Wife, vol. 2, p. 9.)

[Broome General Term, November 20, 1860.

Balcom, Campbell and Parker, Justices.]

If the justice committed any errors in admitting or rejecting evidence on the trial, they were technical, and did not affect the merits—and were therefore properly disregarded ky the county court, (Code, § 366.)

These views lead to the conclusion that the county court did right in affirming the judgment of the justice in tMs action ; and that tMs court should affirm the judgment .of the county court, with costs.

Decision accordingly.