Plaintiff, who is the divorced wife of defendant, sues to recover the sum of $7,000, with interest, upon a promissory note made by defendant. The latter pleaded, both by way of defense and as counterclaims, two sums aggregating upwards of $11,000 paid by defendant for- plaintiff’s account during the existence of the marriage. Both counterclaims were allowed as set-offs to plaintiff’s claim, the defendant withdrawing any claim . to affirmative relief. As to the allowance ‘ of one of these counterclaims the plaintiff makes no point on this appeal, the only question being as to the allowance of the other, As *787to this claim, it appears that plaintiff, then defendant’s wife, incurred a bill with a firm of furriers amounting to upwards of $5,000 for lengthening a sable coat and for other things. The account stood in the wife’s name. After it had remained unpaid for some time defendant was requested to pay the bill, which at first he declined to do. The defendant testified that his wife thereupon requested him to pay the bill as she had no money with which to pay it, and that he thereupon did pay it. He also testified that at the time his wife asked him to pay the bill she did not ask him to advance the money, and did not mention any fund out of which it was to he paid. That she “ just asked me to pay it, and I paid it.”
There was evidence from which the jury might reasonably infer that the items included in the bill were not, properly speaking, necessaries, and that the husband supplied his wife with ample funds to procure such necessaries as she might require. If this had been an action between the tradesman and the husband the evidence would have justified a verdict in favor of the latter. (Wanamaker v. Weaver, 176 N. T. 75; Wickstrom, v. Peck, 155 App. Div. 524.)
Here, however, a very different case is presented. While the husband may have been under no legal duty to pay the bill in the first instance, he did. in fact pay it voluntarily without any agreement on the part of his wife to reimburse him. This certainly raised no implied promise on her part that she would pay it, any more than the acceptance by a wife of a present from her husband would imply a promise to pay him the value thereof on demand. ■ In effect, what' defendant did was to make his wife a present of the money which he paid, without legal compulsion, for her adornment. He certainly could not have maintained an independent action against her for the amount he paid, for there was neither an express nor an implied agreement on her part to repay it. If the claim was not one which could have been enforced in an action by defendant against the plaintiff, it was not available to him as a counterclaim. (See Code Civ. Proc. § 501.)
The judgment and order appealed from must be reversed and judgment directed in favor of the plaintiff for the difference between the amount due plaintiff upon the note sued *788upon, with interest, and the amount of the counterclaim for $5,870.38, not questioned on this appeal, with interest besidós the costs of the action including the appeal to this court.
Ingraham, P. J., McLahghlln and Clarke, JJ., concurred; Laughlin, J., dissented.