¶1(dissenting). If the recovery in this action is to be. upheld by reference to the decision of the second department, which at once announced a doctrine novel in this State and overruled respectable authority of long standing, it should be show'll that the facts upon which this recovery is based were within the requirements stated in Naumer v. Gray, 28 App. Div. 529, 534, wherein it was said: “ To succeed in it the plaintiff must show affirmatively that the suit was for the protection and support of the *577wife, and. that the conduct of the husband was such as to render its institution and prosecution reasonable and proper.” As in that action, the wife was plaintiff, while here she was defendant, it was e converso necessary here to show by affirmative evidence that the conduct of the husband was such as to render the institution and prosecution of the action unreasonable and improper, and that the wife was entitled to protection and support. No evidence of that sort appears, although the plaintiffs were permitted to introduce hearsay in drafts of affidavits -verified by no one, and in the recital by one of the plaintiffs of what the wife had told him, and wherein, moreover, the husband, here the defendant, was prevented by the objection of the plaintiffs from testifying to the facts upon which he had proceeded.
¶2Judgment affirmed, with costs to respondent.