Plaintiff sues the defendants, husband and wife, to recover for an alleged breach of a contract whereby, it is alleged, defendants engaged board and lodging for themselves and family for the summer, which they subsequently refused to avail themselves of or pay for.
At the opening of the trial of the action plaintiff moved to discontinue as against the wife, which motion was granted, and after testimony on both sides a verdict was rendered against the husband, and judgment was entered that the action against the wife be discontinued, and that plaintiff recover against the husband the amount of the verdict and costs. Both defendants appeal, the husband for alleged error at the trial and the wife on the ground that she should *355have been awarded costs as a condition of leave to discontinue. The case has been tried before. At a former trial the complaint against the husband was dismissed for failure of proof of agency in the wife to bind him, and a verdict was rendered against the wife. Both were reversed on appeal — the judgment against the wife on the ground that an arrangement made by the wife for board and lodging for the family must be assumed to have been intended as the husband’s contract, and no recovery against the wife can be had ■without proof that it was the intent both of the wife and the hotel company that the contract should be her personal contract. Stevens v. Hush, 104 Misc. Rep. 69. The judgment dismissing the complaint against the husband was reversed on the ground that the evidence of the wife and the husband tended to show authority on her part to bind the husband, and was therefore sufficient to put the husband to his proof. Stevens v. Hush, 172 N. Y. Supp. 258. The arrangement, whatever it was, was eoneededly made by the wife, and at the trial under review the court charged the jury that “whatever Mrs. Hush.did was binding upon her husband. If she made an agreement with this hotel the law presumes that she had authority from her husband so to do, and the law carries liability to the husband.” The court excluded testimony by the husband intended to show want of authority in the wife to act for him, saying: ‘ ‘ The law presumes that the ydfe had authority to make a contract for board and lodging.” To both the charge and this ruling defendant excepted, and their correctness presents the question involved in the husband’s appeal. There is no general presumption at law growing out of the marital relation that the wife is authorized to act for the husband. At common law the husband is charged with the duty and burden of supporting his wife and *356family, and where the husband and wife are living together, parties dealing with the wife for necessaries, knowing this, are entitled and bound to assume that the proposed contract is on the husband’s obligation alone, who may, however, show as matter of defense that he has supplied the necessaries either in kind or in money wherewith to buy them; otherwise he is liable, and the fact that the wife had not been authorized by the husband to bind him or had even been in fact forbidden to do so, is immaterial. In cases, however, other than for necessaries, the liability of the husband depends solely on the principles of agency, to be proved as in other cases, or of estoppel, if she has been held out as authorized to bind him. Wanamaker v. Weaver, 176 N. Y. 75; Frank v. Carter, 219 id. 38; Martin v. Oakes, 42 Misc. Rep. 201; Keller v. Phillips, 39 N. Y. 351. There are two theories on which defendant in this case may be held liable: one, that the contract was for necessaries, in which case evidence of authority in the wife is unnecessary; the other, that although not for necessaries, the wife had specific authority to bind the husband. At the trial there was some evidence given to show specific authority in the wife to bind the defendant. The court, however, by its charge and ruling, in effect held that as matter of law the alleged contract if made was for necessaries on which defendant was as matter of law liable and excluded evidence tending to negative authority in the wife as defendant’s agent. The question on this appeal is therefore whether the alleged contract is as matter of law a contract for “ necessaries ” as that term is used and defined in the law. The parties concededly are living together and have a permanent home in the city of New York. That board and lodging in themselves generally belong to the category of things appertaining to maintenance and *357support may be conceded without question. It is quite apparent, however, that for every contract of that character the wife might make, no matter where or for how long a period, the husband would not be liable without his consent. That under the circumstances a contract in advance for a suite of rooms and private bath with board at a seashore hotel for the fixed period of the summer season at a place other than the usual place of abode is a contract for ‘ ‘ necessaries ” cannot, I think, be held as matter of law. Whether it is a reasonable and suitable necessity involves questions of fact which should be submitted to the jury under proper instructions. If it was not a contract for necessaries the question at the trial then was whether the wife was as matter of fact specifically authorized to bind the defendant, and on such issue evidence tending to negative such authority was proper. There were thus in the case two questions of fact to be presented for the consideration of the jury, and as to the latter, the evidence excluded should have been received. This exclusion of evidence was therefore error. The judgment as to the husband must be reversed and new trial ordered, with costs to appellant to abide the event.
As to the wife’s appeal, if no discontinuance had been asked for and the cause had proceeded to trial against both defendants, and plaintiff had failed as to the wife and recovered as against the husband, the wife, having united in the answer with the husband, would not have been entitled to costs, either of course or as matter of discretion (Code Civ. Pro. § 3229), but if plaintiff had failed as to both defendants, the wife would have been entitled to part of the costs as of course. Under such circumstances it was within the discretion of the court to impose some costs as a condition of allowing the discontinuance, and this *358should have been done, and this court can modify the judgment accordingly. Reichert v. Walter, 80 Misc. Rep. 402; Jaffray v. Goldstone, 62 Hun, 52. The court below apparently denied costs on the ground of lack of power.
It would probably have been more proper practice to have entered an order and appealed from that, but this is no sufficient reason for denying relief.
Judgment as against Harry J. Hush and order appealed from are reversed and new trial ordered, with costs to appellant to abide the event, and judgment as to Catherine Hush modified so as to provide for the payment of thirty-five dollars as a condition of the leave to discontinue, and as so modified affirmed, without costs of appeal.