In their suit for work, labor and services and materials furnished, it was incumbent on the plaintiffs to prove an express contract with the defendant for clothing ordered by her as Mrs. Daniel M. Brady, *237for “ the common-law duty of a husband to support his family has not been changed by legislation relating to married women * * The liability for necessaries furnished to the family of a married man is presumptively and primarily upon the husband, unless the wife by express agreement charged herself personally with the same.” Grandy v. Hadcock, 85 App. Div. 173, 174. Ho such express agreement was shown; in fact, the preponderance of evidence of the saleswoman of the plaintiffs and of the defendant herself, tended to establish sale and credit to the husband of the defendant in nowise contradicted by evidence of the way the plaintiffs kept their books and entered their charge accounts, or by the direction to pay alimony after the order for the goods had been given and accepted, or by much otherwise immaterial to the issue herein.
True it is that husband and wife were living apart, but that fact alone is insufficient to relieve him of his marital obligation; though it may not always be based upon the theory of an implied agency as the dictum in Hatch v. Leonard, 165 N. Y. 435, 438, would seem to import, but, rather, upon the duty cast by law, because, as appears from the testimony herein, “ If the separation is not due to her misconduct, the husband will continue to be bound to furnish her with those things which are reasonably necessary for her, or their children, and if he fails in that respect, she will be entitled to a general credit to that extent; but the theory, or implication, of an agency in her is negatived by the fact of the separation. If she is not expressly authorized, as any other person might be, to act as his agent; or, if her contracts are not recognized and ratified by him, his liability must rest upon a different ground. It must rest upon the duty which the law has always recognized as being imposed upon him, by virtue of their marital relations, to supply her with what she needs in her condition of life. His failure to perform that which law and duty require of him, confer upon her authority to act, to the extent that it may be necessary to provide herself and her family with the reasonable necessaries of life.” Gray, J., dissenting opinion in Hatch v. Leonard, 165 N. Y. 435, 442, taken as statement *238of the rule in Constable v. Rosener, 82 App. Div. 155, which latter case has been affirmed above on the opinion in the Appellate Division.
There was a conflict herein between the wife and the husband as to what and how much money was furnished by him to her, but no dispute that the wife is suing the husband for an absolute divorce and that he left the house on October eighth and has not been back since then. The determination of the trial justice upon the facts should not be disturbed and the judgment rendered in favor of the defendant should be affirmed.
Judgment reversed and new trial ordered, with costs to appellants to abide event.