Weaver v. Weaver

This is an action for separation by the husband, pursuant to section 1762 of the Code of Civil Procedure. The parties intermarried in 1888, and apparently lived happily together until about the time of the commencement of this action. The plaintiff is a hardware merchant of the city of Rochester, sensitive of his financial standing and reputation among the people of the city. On the 9th of June, 1900, he learned that his wife had forged his name to two promissory notes discounted at the Alliance Bank in Rochester. One was for $1,000, falling due June 10th, and the other for $2,200. Upon discovering these forgeries, the plaintiff, after some persuasion, and upon the promise of the defendant to commit no further like derelictions, and to pay these notes, and adding that she knew positively where the money would be forthcoming to meet them, indorsed the notes, and they were in fact paid by the wife, or at least not by the plaintiff. The defendant’s delinquencies, however, did not cease, but she continued to write the name of the plaintiff upon promissory notes without his authority, and to procure them discounted at banks in the city. This forging of his name ran along until September 17, 1900, and the aggregate amount of this paper was $11,700. A lawyer in the city, named Davis, had been an accommodation indorser on promissory notes for the defendant, and she forged his name on two promissory notes, one of $1,200 and one of $5,000, which she caused to be discounted at the Traders’ National Bank of Rochester. She was indicted by the grand jury of Monroe county on the 16th of May, 190Í, accused of the crime of forging the indorsement of Davis on the $1,200 note. On the 1st of August, 1900, a note bearing the forged indorsement of the plaintiff, made by the defendant, and which had been discounted at the Commercial Bank of Rochester by her, matured, and the plaintiff was apprised of the forgery, but the note was paid by the defendant. The business culminated in October, when it developed that the note of $5,000 had been put in circulation by the defendant, bearing the forged indorsement of the plaintiff, at the Traders’ National Bank of Rochester, which bank also held two other promissory notes, on each of which the plaintiff’s indorsement was forged. The plaintiff declined to indorse these notes, and on November 12th left his wife, and commenced this action on the following day. On the 24th of October, when confronted with these forgeries, she admitted them, and at the instance of the plaintiff signed a written statement that the signature of Davis and that of Mrs. Wells, her mother, upon the $1,200 note, were forgeries, she having signed these names without the knowledge of the indorsers. The plaintiff, in 1898, allowed his wife $1,200 for household and personal expenses, and thereafter $1,500 annually, although he testified that his entire annual income was only $2,000. She, however, pledged his credit at many stores, aggregating a large sum. During the entire summer in which these forged notes were being uttered the plaintiff and the defendant were living together. She had rented a cottage for the summer at Hemlock Lake, near Roches

There are two grounds upon which the plaintiff contends he is entitled to a decree of separation from his wife: First, because of the forging of his indorsement and that of Davis on the various promissory notes referred to; and, second, because of her extravagance. It is to be noted that the parties lived together in a style unwarranted by the allowance provided or the income of the plaintiff. They went considerably in society, kept a horse and carriage, and apparently she dressed fashionably, and her mother resided with them a good portion of the time, and their mode of life was that of fashionable people in affluence. The husband knew this, and, although upbraiding his wife for her extravagance, he must have understood that the allowance he furnished was inadequate to meet the expenses incident to the expensive life they led. The trial court has found that the discovery of the forgeries “and the conduct of his wife prostrated the plaintiff, caused him a great deal of mental agony, anxiety, and worry, sleepless nights, loss of appetite, and a general breaking up of the plaintiff, so that these troubles occupied his mind to the exclusion of business matters, rendered him unable to concentrate his mind in business, and caused him to lose all interest in his business, from which he has not fully recovered, although he has to a large extent.” The only subdivisions of section 1762 upon which plaintiff may in any event base his action, are: (1) “Cruel and inhuman treatment,” or (2) “such conduct” on defendant’s part as renders- it “unsafe and improper” for him to cohabit with her.. As to- the second ground, they lived together after he. had discovered the forgeries and knew of her expensive habits, and there was no threatening on her part. When confronted with the .charges, she admitted them, and there is nothing upon which may be hinged a cause of action by virtue of this subdivision. Living with her was not unsafe, and there was no impropriety in so doing. While the conduct of the defendant unquestionably produced a depressing effect upon the plaintiff, and was galling and humiliating to him, it does not come within any definition of “cruel and inhuman treatment” which I have been able to find. To be sure, it is not necessary that physical violence, or the fear of it, be established to justify a decree of separation. In every case where other misconduct has been the foundation of the decree, it has been in a suit by the wife and the actions proven have shown intolerable treatment directly to- the wife or in her presence. The unfounded charge of unchastity, cruel beating of her children without provocation, and in her presence, and for the purpose of tormenting her, and acts which indicated a studied and persistent attempt by.the husband to render her life unbearable, have been made the basis of the decree, although no actual violence to her was proven. Typical cases of this kind are Atherton v. Atherton, 82 Hun, 172 ,

Judgment affirmed, with costs. All concur: