Itzkowitz v. Itzkowitz — 33 A.D. 244

Majority

p. 244

Rosa Itzkowitz, Respondent, v. Jacob Itzkowitz, Appellant.

Headnote

Husband and wife — sufficiency of a com/plaint in an action for a separation on the. ground of cruelty and.abandonment — alimony and counsel'fees.

A complaint in an action by á wife for a separation, which alleges that the. defendant on March 26, 1898, “brutally beat this plaintiff about the head and face; ” that he has absented himself from his home since May 16, 1898; that he has failed to furnish plaintiff with the necessaries of life, "and that, his entire • . course of conduct .towards her, prior to the abandonment, was so brutal as to undermine her health, states a good cause of action, and will sustain an award to the plaintiff of alimony and of a counsel fee pending the trial of the action.

Appeal by the defendant, Jacob Itzkowitz,- from an order of thé Supreme Court, made at the New York Special- Term and entered in the office óf the clerk of the county of-.New York on the. 5th-day of July, 1898, awarding the plaintiff alimony and a counsel fee pending the trial of the action.

Jacob Levy, for the appellant.

B. Lewinson, for the respondent.

The principal ground urged for reversal is that the complaint. does not state facts sufficient to constitute a cause of action. This seems untenable. It is. alleged that the defendant, on March 26, 1898,, “ brutally beat this plaintiff about the head and face.” It is further alleged that defendant has absented himself from his hoine , since- May 16, 1898; that lie has failed.to furnish plaintiff with the necessaries of life, and that his entire course of conduct toward her, prior to the abandonment, was so brutal as to.undermine her health. Whatever the proof, these allegations are'sufficient. It- may be that a single instance of cruelty is not, of itself, enough to justify a suit for a separation (Solomon v. Solomon, 28 How. Pr. 218 ); but, taken in connection' with the other averments here, the beating alleged is sufficient. The general ill-treatmept is alleged - to have been sufficient to impair the plaintiff’s health, and so comes up to the legal requirements. (Perry v. Perry, 2 Paige, 501.) The" allegations of the complaint are supported by the verified averments of the petition, which are corroborated by the affidavit of,the-petitioner’s mother.

p. 245

The plaintiff’s allegations are denied by the defendant’s affidavits ; but a fair question seems to have been presented for the exercise of the discretion of the Special Term, which should not be disturbed.

The order should, consequently, be affirmed, with ten dollars costs and disbursements.

Present-—- Barrett, Rumsey, O’Brien and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Solomon v. Solomon 28 How. Pr. 218 N.Y. Super. Ct. p. 244