p. 165Mary A. Bolen, Resp’t, v. George F. Bolen, App’lt.(Supreme Court, General Term, Second Department,Headnote
DrvoBCE—Evidence—When judgment sustained.When, in an action for divorce on the ground of cruel and inhuman treatment, the defendant desires the plaintiff's testimony as to the allegations of cruelty, hut ,his evidence is insufficient to refute the natural and circumstantial story related by the plaintiff, a judgment in the plaintiff’s favor will not be disturbed.
Appeal from a judgment granting plaintiff a separation from the bed and board of defendant, and maintenance, on the ground of cruel and inhuman treatment.
A. J. Perry, for app’lt; Jacob F. Miller, for resp’t.
This is an action by the wife against her husband for the procurement of a divorce on the ground of cruel and inhuman treatment. The cause has been tried, and a judgment rendered in favor of the plaintiff from which the defendant has appealed.
The trial judge has found facts sufficient to sustain the judgment, but we must ascertain whether the findings are supported by the evidence in the case.
Only two witnesses were examined upon the main question; the plaintiff and the defendant. The testimony of the plaintiff proved the use of abusive and insulting language to her, and the application to-her of vile and oppro
p. 166bious epithets, an attempt to smother her in bed with the bed covering, accompanied with language indicative of a design and effort to kill her, a threat to bring lewd women to her home, her fear to go with him to the country because he declared he would get the best of her if they lived in any other house, a threat which indicated an intent to kill her if it meant anything, as she evidently feared it did, and his cruel declaration that he had more pleasure with other women than with his wife. Her testimony also proved that the defendant had knocked her down, and had kicked her over repeatedly; that he locked the door against her, and exhibited a revolver and threatened her with that dangerous instrument, threatened to tie her with a rope, choked her; declared to her that another woman was wearing her wedding ring which he had taken away from her, and finally that she was afraid of him, and deemed it unsafe for her to live with him. Such proof was ample to support the findings.
It is true the defendant made denials of most of the plaintiff’s testimony, but his evidence failed to command or receive the belief of the trial judge, and we find it quite insufficient to refute the natural and circumstantial story related by the plaintiff.
The judgment should therefore be affirmed, with costs.
Pratt, J., concurs; Barnard, P. J., not sitting.