Gimbel Bros. v. Steinman

Max Shenghit for plaintiff. Herman Phillips for Samuel Steinman, defendant. that she did not leave her husband against his will and without justifiable cause (Catlin v. Martin, 69 N.Y. 393), and that the separation was due to the husband's fault (Wolf v. Schulman, supra; Steisel v. Gratzer, 66 N. Y. S. 2d 526). To constitute "abandonment" there must be a departure of the spouse from the marital home without justification and without consent of the other spouse (Matter of Mooney, 86 N. Y. S. 2d 485; Matter of Barc, 177 Misc. 578). If a person leaves the abode occupied by both parties to the marital relationship without cause or reason or justification, that in law would be actual abandonment (Zlotnick v. Zlotnick, 91 N. Y. S. 2d 445). By the weight of the credible evidence, this court finds: (1) While the husband was not relieved of liability for the wife's necessaries by reason of the notice admittedly received by the storekeeper, the burden of proving that the husband did not suitably provide for the wife shifted to the storekeeper by reason of the fact that the couple were living apart at the time the purchases were made, and the storekeeper was officially put on notice thereof; (2) That the storekeeper sustained the burden of proof on this point since the husband admitted that he gave her no money since the day she left him and did not after that provide her with any funds whatsoever; (3) That there was, however, an abandonment of the husband by the wife without just cause and without his consent, and that the plaintiff has not sustained the burden of proving that the separation was due to the husband's fault; (4) That the abandonment here is a complete defense to liability for the wife's purchases of necessaries made after the abandonment, and that the husband is therefore not liable for the remaining items found to be necessaries by this court. Accordingly, judgment is hereby rendered on the law and the facts in favor of the defendant, Samuel Steinman, dismissing the complaint as to him on the merits, without prejudice to the plaintiff bringing an action against the other defendant, Mary Steinman, who was not served in this action, and as to whom the action was severed.