HEBBERD, Com’r, v. LEE.
(Supreme Court, Appellate Term.
November 24, 1908.)
Husband and Wife (§ 319*)—Abandonment — Undertaking fob Support— Recovery—Evidence.
To recover against a surety on a statutory undertaking exacted from a husband to pay a weekly sum for the support of his wife, it must be proved that the wife had become a charge upon the public treasury.
[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 319.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Robert W. Hebberd, Commissioner of Public Charities of the City of New York, against Frank Dee, impleaded with Alexander P. McArthur. Judgment for plaintiff, and defendant appeals.
Reversed, and new trial ordered.
Argued before GIDDERSDEEVE, P. J., and MacDEAN and SEA-BURY, JJ.
Charles Frankel, for appellant.
Francis K. Pendleton (Herman Stiefel, of counsel), for respondent.
SEABURY, J.
This action is brought upon an undertaking given in a proceeding in a magistrate’s court, requiring the defendant McArthur to pay the sum of $10 a week to his wife for her support. The defendant Dee was surety upon this undertaking. Upon the trial the plaintiff proved that the defendant McArthur defaulted in the payment of the sum of $80, but failed to prove that McArthur’s wife had, in fact, become a charge upon the public treasury. Upon the failure of the plaintiff to prove this fact, the complaint should have been dismissed. The case of Goetting v. Normoyle, 191 N. Y. 368, 84 N. E. 287, is decisive of the question now presented, and renders further discussion unnecessary.
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.