Waltermire v. Waltermire — 17 N.Y. St. Rep. 175

Majority

p. 175

Edward N. Waltermire, App’lt, v. Maria Waltermire, Resp’t.^[1]

{Court of Appeals,

Filed June 29, 1888.)

Headnote

Marriage and divorce—When wife entitled to separation and REASONABLE SUPPORT—CODE ClV. PRO. §§ 1767 AND 1772.

In an action by a husband against his wife for abandonment where the

p. 176

testimony proved that the husband had abused and ill-treated his wife, and that the ill-feeling of the husband towards his wife was manifested repeatedly, not by mere petulance or rudeness, but by a series of acts of personal violence and a continued use of insulting language which caused the abandonment, Held, that the case was brought within section 1767 of the Code of Civil Procedure, which for cruel and inhuman treatment permits a separation, and the relief authorized by section 1772 may be had by the wife, although the husband is the plaintiff. The circumstances which constituted the husband’s misconduct not only defeat his action but entitle, the wife to a separation and a reasonable support at his hands.

Appeal from a judgment of the supreme court, general term, second department, reversing a judgment of the special term m favor of the plaintiff.

The action was brought by plaintiff against his wife for' abandonment. The wife answered alleging cruel and inhuman treatment on the part of plaintiff and asked for a separation and support.

Henry W. Gilbert, for app’lt; W. Farrington, for resp’t.

The courts were not troubled in this case with contradictory statements nor the evidence of casual observers whose inferences might be inflamed or partial, as their sympathies went with one or the other party. They have had only the testimony of the defendant, and that not given voluntarily or as a witness in his own behalf, but on compulsion of the plaintiff and left by him undisputed. Yet from this testimony the courts below have reached different conclusions—the trial judge relieving the plaintiff by a decree in his favor, and the general term adjudging that the plaintiff was at fault and not' only to be defeated by his own misconduct, but that the defendant was entitled to recover upon her affirmative allegations. A new trial was therefore ordered, but the plaintiff by appealing makes that impossible and he consents to judgment absolute if the decision shall be affirmed. • We think the evidence justified the conclusion of the general term.

The parties were married in 1834, and from that time until September, 1882, nearly half a century, lived together as husband and wife, she rendering wifely service as a helpmate in all that that term implies, until, as she alleges, compelled “by his faithless and hateful conduct as a husband, and his cruel and inhuman treatment, to leave his side.”

The evidence in the case was adopted by the court as the defendant’s pleading. From that it appears that, in 1877, the plaintiff laid violent ‘ ‘ hands upon her, led' her to the door, threatened to knock her down, and struck at her twice.” Upon another occasion, falling to the floor from sickness, “he said it was a pity she ever got up; ” and again he said, “I will be glad when you draw your last breath.” He called her “all the bad names that belong to a bad woman,” “ a dirty bitch,” “aliar,” “a whore.” He accused

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her of being “ with different men in the neighburhod, naming several, and having with them improper intercourse. ” These are the gravest circumstances that characterize his conduct as “ cruel and inhuman.” There are many others which made her life miserable and rendered it unfit that she should live with him and impossible for her to do so with any sense of self respect, or with any comfort. They were continuous and not occasional. Those mentioned bring the case within the statute which for cruel and inhuman treatment permits a separation (Code, § 1767), and that relief by the terms of the same statute (id. § 1772), may be had by the wife, although the husband is the plaintiff. The circumstances which constitute his misconduct not only defeat his action, but entitle the defendant to the protection of the court. The ill feeling of the plaintiff towards his wife was maniffested repeatedly, not by mere

petulance or rudeness,” but by a series of acts of personal violence and a continual use of insulting language. He thus caused the abandonment of which he complains, and his conduct entitles the defendant to a separation and a reasonable support at his hands. Barrere v. Barrere, 4 John. Chy , 187.

The order appealed from should, therefore, be affirmed and the defendant have judgment absolute, according to the prayer of the answer.

All concur.