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People ex rel. Boettcher v. Boettcher

126 N.Y.S. 301 Court N.Y. App. Div. Decision date 1910-12-30 English

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p. 301
PEOPLE ex rel. BOETTCHER v. BOETTCHER.
■(Supreme Court, Appellate Division, First Department.
December 30, 1910.)

Headnote

Husband and Wife (§ 304*)—Abandonment by Husband—Offense.
Where a wife abandoned her husband, he Being able and willing to support her, and there was no danger of her becoming a public charge, a judgment convicting him of being a disorderly person, in that-he had •abandoned his wife, was unsustainable.
[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 1102; Dec. Dig. § 304.*]
Appeal from Court of General Sessions, New York County.
Otto Boettcher was convicted of being a disorderly person, in failing to provide support for his wife. From an order of the Court of •General Sessions, affirming such conviction,' defendant appeals.
Reversed.
Argued before INGRAHAM, P. J„ and CLARICE, SCOTT, MILL.-ER, and DOWLING, JJ.
William Brunner; for appellant.
Theodore Connoly, for respondent.

This is an appeal from an order of one of the •judges of the Court of General Sessions, affirming a judgment of a ■city magistrate convicting defendant as a disorderly person. The judgment of conviction shows that appellant was charged with and ■convicted of abandoning relator, his wife, and leaving her without proper means of support, so that she was liable to become a burden upon the public.

The evidence before the city magistrate showed clearly that it was the wife who abandoned the husband, that the latter always had been .and still was able and willing to support her, and that she was in no •danger of becoming a public charge. The case falls precisely within the rule declared by this court in People v. Demos, 115 App. Div. 410 , 100 N. Y. Supp. 968 .

The order appealed from was erroneous, and both it and the judgement of conviction must be reversed.

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