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Grunhut v. Rosenstein.

Bernhard GrUNHUT, Respondent, against LEO ROSENSTEIN, Appellant.

(Decided April 2d, 1877.)

Where the defendant had sent his wife and children to live with the plaintiff, and had then demanded the children from his wife, who had (to the plaintiff's knowledge) refused to deliver them up, and the defendant had thereafter sued out a writ of habeas corpus for his children, and in those proceedings his attorneys had agreed that until the termination of the proceedings the children should remain in the custody of the wife. Held, that although the refusal to surrender the children to the defendant would otherwise have prevented his liability for necessaries supplied to them thereafter, yet his subsequent consent that they should remain in the custody of the mother until the termination of the habeas corpus proceedings continued his liability therefor to the plaintiff for necessaries furnished them while in the custody of their mother until such proceedings were terminated.

Where the defendant's children, who were living with their mother (the defendant's wife), from whom he had separated himself, were of the ages of twelve, nine, and eight years, and were in ordinary health and attended school daily, and the defendant's wife was able to take care of them, had she chosen to do so, and the defendant was a man of small means. Held, that under these circumstances, a nurse for the children was not necessary, and that the plaintiff who had paid the wages of such a nurse could not recover the same from the defendant.

APPEAL by the defendant from a judgment of the Third District Court in New York City.

The action was brought by the plaintiff to recover from the defendant the sum of $100 for necessaries alleged to have been furnished by the plaintiff to, and at the request of, the wife of the defendant, of which $22 was for medical attendance and $78 for wages of a nurse.

The answer was a general denial.

The evidence in the case, as shown by the return of the justices, was that the plaintiff was the brother of Mrs. Matilda Rosenstein, the wife of the defendant; that on September 14th, 1875, the day Mrs. Matilda Rosenstein arrived from Europe, the defendant made a communication to her in writing, in which he informed her that on account of infor

Grunhut v. Rosenstein.

mation he had received, that while residing in Germany she had been unfaithful to him, he refused to further live with her or recognize her as his wife until he was satisfied of the falsity of the charges; that he had determined not to separate himself from her except upon proof that she was guilty, and that for the purpose of obtaining definite information he had sent to Germany, and that until an answer to his letter was received he should continue to furnish her with such means for her support as he could afford, and that he desired her to go to the house of her father or brother, and reside with them until he was satisfied of her innocence of the charges made against her, or until her guilt was established.

That at this time she had with her the three children of the defendant and herself, aged respectively twelve, nine, and eight years; that on that or the following day she, accompanied by the three children, went to the house of plaintiff, where she remained until some time in April or May, 1876; that the defendant, having been advised that he was entitled to the care, custody, and control of his children, made arrangements to have them boarded and educated at a boarding-school in this city, and on or about the 16th of September, 1875, he notified his wife that he had made such arrangements, and that he should call at the house of the plaintiff on the 17th of September for the purpose of taking said children to school; that he called accordingly on said day and demanded the children, whereon she refused to give them up, and of these facts the plaintiff had notice.

That thereupon the defendant procured a writ of habeas corpus from the Supreme Court to obtain the custody of his children, and that the proceedings on the return of the writ having been adjourned the attorneys for the defendant signed a stipulation that until the termination of the habeas corpus proceedings, or until a demand should be made for their production, the children should remain in the custody of their mother, and that under this stipulation the children had remained in the custody of their mother until after the commencement of this action.

Grunhut v. Rosenstein.

Samuel Boardman, for appellant.

VAN HOESEN, J.-If the defendant had not, subsequently to the time he demanded of his wife and the plaintiff the possession of the children, consented that the status in quo should be preserved during the habeas corpus proceedings, I should have no hesitation in saying that the plaintiff could not maintain this action; but, by consenting to preserve the status in quo, he agreed to continue the arrangement under which his wife and children were boarding and lodging with the plaintiff, and until the habeas corpus proceedings are terminated in some way, he will be liable to pay for necessaries for the children whilst in the custody of the mother. (Gill v. Read, 5 R. I. 343.)

A husband is not liable for money lent to his wife, unless his request be averred and shown (2 Kent, marg. p. 146, citing 7 Taunton, 432). In this case it appears that the payment of servants' wages by the plaintiff was nothing more than a loan of money or an advance to the wife. Furthermore, the evidence shows that a nurse was not necessary for the wife of the defendant or for the children. The children were twelve, nine, and eight years old; they went to school, were very regular in their attendance, and were in ordinary health; neither of them required a nurse, nor was a nurse employed in consequence of the bodily infirmities of the children; Mrs. Rosenstein was well able to take care of them, and the only excuse offered for the employment of a nurseis that Mrs. Rosenstein was frequently away from home of afternoons, looking after her lawsuit with her husband. During school hours the children were at school; and the plaintiff's claim is, I suppose, that a nurse was needed to receive the children on their return from school when the mother chose to be away from home. The nurse did not sleep on the same floor with the children, never knew they were ailing, and is not shown to have had any duties to perform with respect to them; what work she did whilst the children were at school is not shown, though from the fact that the plaintiff employed her, I think it not unfair to

Grunhut v. Rosenstein.

conclude that she was doing domestic service about the house. It would be doing no violence to the testimony to infer that the presence of Mrs. Rosenstein and her children in his house made it necessary for the plaintiff to employ an extra servant, who was styled the nurse, in order that the defendant might be called on to pay her wages. The defendant is a man of little or no means. There is a good deal of evidence in the case respecting a multitude of bills against the defendant which the plaintiff has presented. It seems that though the children were all the time well enough to go to school, the plaintiff has charged more than one hundred dollars per month for medical attendance upon them; not satisfied with this, a Dr. Elliot, who occupies the office with him, has also a bill for medical attendance. The plaintiff has presented other bills, making an average of nearly six hundred dollars per month, for board, lodging and medical attendance furnished Mrs. Rosenstein and the children. A husband and father is bound to furnish necessaries to his wife and children, but it is for the court to say what are and what are not necessaries. Under the circumstances of this case, I am satisfied that a nurse was not necessary. I waive observations respecting the bona fides of the plaintiff in his claims against the defendant.

The judgment should be modified by deducting $78, the amount of plaintiff's advances for nurse's wages, and, as modified, should be affirmed without costs of appeal.

CHARLES P. DALY, Ch. J., concurred; JOSEPH F. DALY, J., dissented.

Judgment modified in accordance with opinion, and, as modified, affirmed.

Durian v. The Central Verein of the Hermann's Soehnne.

BARBARA DURIAN, Appellant, against THE CENTRAL VEREIN OF THE HERMANN'S SEHNNE, Respondent.

(Decided April 2d, 1877.)

Where a benevolent association, organized under the general act for the incorporation of benevolent societies, provides by its constitution that upon the death of a member of the society each member thereof shall pay into the treasury of the society $1, and that the sum thus realized shall be paid to the widow or minor children of the deceased member, the rights acquired by a person who becomes a member of the society while such a constitution is in force does not constitute a contract of insurance upon his life by the society, and in favor of the then wife of the member, under the statutes (L. 1840, c. 80; L. 1858, c. 187) empowering a wife to insure the life of her husband, and the constitution of the society may afterwards be changed so as to make the sum payable to any one designated by the member in his lifetime, and the person so designated will then be entitled to the exclusion of the widow.

A provision of the constitution of such a society requiring a member to designate the beneficiary whom he designs to have share in the benevolent fund at his death is sufficiently complied with by any form of words that is sufficient to clearly make known his intention, and the addition of the word "wife" to the name of the person designated, she not being his wife, does not make the designation ineffectual.

APPEAL from a judgment entered upon a decision of the general term of the Marine Court of the city of New York, affirming a judgment rendered by that court at trial term in favor of the defendant upon the merits. The cause was tried by the court, a jury having been waived.

This action was brought by the plaintiff, Barbara Durian, to recover from the defendant, an incorporated benevolent society, the sum of $500, to which she claimed she was entitled out of its funds, as the person who had been designated in accordance with its constitution to receive said sum, by Philip Durian, a member of that society, who had died after making such designation.

The defense substantially was that by the constitutions of that society the sum of $500 was payable to the widow of

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