Majority
p. 48FRANCISCA KLEIN, Plaintiff and Appellant, v. GEORGE KLEIN, Defendant and Respondent. Before Jones, McCunn, and Freedman, JJ. Decided December 30, 1871.
Headnote
Divorce from Bed and Board.—Complaint in.1. Immaterial and irrelevant allegations, what. are.
a. Allegations of scandalous, indecent and licentious acts committed -with and on certain females other than plaintiff, unaccompanied wich averments that such acts and .conduct either led plaintiff to apprehend personal injury to herself, or gave her pain, or affected her body, mind, health, or feelings.
b. Whether such allegations would be material and relevant, even if so accompanied,—Query.
3. Indefiniteness.
a. Contraction of veneral disease.
The court will not require the time and place of such contraction to be given.
Appeal from a special term order, requiring a com*
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plaint in an action for a separation from bed and board to be made more definite and certain, and striking out certain allegations..
Tlie complaint was as follows :
“The plaintiff, complaining of the defendant, shows to the court:
“ 1. That the plaintiff is the wife of the defendant, and that plaintiff was married to defendant at the city of Coblentz, in Germany, on or about May 6, 1847.
“II. That, subsequent to said marriage, the plaintiff and defendant became residents and inhabitants of this State, and that they have been and remained residents therein at the city of Hew York for more than one year; and that the plaintiff is, at the time of exhibiting this her complaint, a resident in said city and State.
“III. That at various times and places during their said marriage, the defendant has treated the plaintiff in a cruel and inhuman manner, and has been guilty of such conduct as renders it unsafe and improper for her to live with him.
“ First. That defendant at various times during their said marriage has, by reason of improper and licentious conduct on Ms part, become affected and diseased with what are commonly known as venereal diseases. That defendant has, by cohabitation with the plaintiff at various times, communicated said diseases to the plaintiff, causing her great suffering and pain, and endangering her life; and that plaintiff has been obliged to expend large sums of her own money and earnings in curing herself of said diseases ; that defendant furnished little or no money or assistance for said purpose, and that plaintiff is still suffering from the effects of said sickness; that defendant has furthermore contaminated and in
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fected the children of plaintiff and defendant with the said diseases ; that plaintiff has had by defendant during their marriage seven children, and six of said children have died from diseases communicated as aforesaidby the defendant; and that plaintiff has beenobligedto expend large sums out of her own money and earnings in procuring medical attendance for said children, and that little or no money or assistance was furnished by defendant for that purpose, and as plaintiff believes, the defendant is still injected with said diseases.
‘■‘■Second. And, further, that the defendant, at various times and places, has conducted himself towards the female servants and employees of the ^amily in a scandalous and licentious manner, and has been guilty of such treatment towards them as to bring disgrace upon the plaintiff and the family of the plaintiff.
“ That, on or about the month of October, 1864, one Amelia Wirtz was employed by plaintiff as a servant in her family ; that during the time of her said ser vice., and at the then residence of plaintiff and de fendant., at No. 701 Broadway, in the city of New Torlc, the defendant treated the said Amelia Wirtz in a scandalous, cruel and licentious manner, and in such manner as- to bring disgrace upon the family of the plaintiff, and that thereby the said Amelia Wirtz was forced and compelled to leave their said residence.
“ That, in or about the month of April, 1866, one Mary Finnegan was employed by plaintiff as a servant in plaintiffs family / that during the time of her said service, and, on or about the time aforesaid, and at the residence of plaintiff and defendant, No. 701 Broadway, in the city of New Torlc, the defendant treated the said Mary Finnegan in a scandalous,
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cruel and licentious manner, by throwing her down, tearing her dress, and in other ways and in such manner as to bring disgrace upon the family of the plaintiff, whereby the said servant was forced and compelled to leave their said residence.
“ That, in the latter part of the year, 1867, one - Clara Bameau was employed by plaintiff as a servant in her family ; that during the time of her said service, and at the residence of plaintiff and defendant, at No. 244 Bowery, in the city of New TorTc, the defendant treated the said servant in a scandalous, cruel and licentious manner, by throwing her down tearing off her dress, and stifling her, and in other ways, and in such manner as to bring disgrace upon the family of the plaintiff, and that by said treatment said servant was forced and compelled to leave their said residence; and, further, that as plaintiff is informed and believes, the defendant has at various other times at their residences in the city of New TorTc treated other servants employed in the family of plaintiff and defendant in a scandalous, licentious and disgraceful manner. And, further, that for more than one year previous to the time of exhibiting this complaint, the defendant has comported and behaved himself with one Kate Gross, or Catharine Gross, in a scandalous and licentious manner. That, to the neglect of the plain tiff, his wife, the defendant became the intimate associate of the said Catharine Gross. That defendant has been seen freguently during the time aforesaid in company with the said Catharine Gross at various public places, festivals and assemblies, and that at said places, festivals and assemblies the defendant has'behaved himself publicly with the said Catherine Gross in a scandalous and licentious manner, in the view of others, by indecent familiarities with the body
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___ and person of the said Kate Gross or Catharine Gross ; that the defendant has neglected the plaintiff, his wife, to associate with the said Kate Gross or Catharine Gross.
“ That, furthermore, defendant has introduced the said Catharine Gross into the residence of plaintiff and defendant at No. 93 East Houston-street, in the city of New TorTc, at unreasonable and late hours. That at their said residence, in the presence of the plaintiff, and, in view of the servants of the family in the rooms and bed-rooms of their said residence, the defendant has behaved himself with the said Catharine Gross in a grossly indecent manner.
“That in the early part of April, 1870, the defendant behaved himself with the said Catharine Gross in an indecent manner in presence of a member of their household by indecent familiarities with the body and person of the said Catharine Gross.
“ That at various times, between July 30 and August 22, 1870, during the absence of plaintiff from the city, the defendant, at the city of New TorTc, publicly and intimately asssociated with the said Catharine Gross / and during that time defendant behaved himself inan indecent manner at the residence of plaintiff and defendant, and tooTc indecent familiarities with the person of the said Catharine Gross in an improper and indecently familiar manner.”
“ IV. That at various times during their married life, the defendant has treated the plaintiff in a cruel and inhuman' manner, notwithstanding the protests of the plaintiff, by forcing her to comply with his desires to a cruel and unreasonable extent, when she was unable to endure it, and in consequences of which the plaintiff has severely suffered in health. That more particularly during the past year, and especially during the month of October therein, the defendant forced and compelled the plaintiff as aforesaid against her
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will to a cruel and unreasonable extent. That owing to peculiar circumstances, said treatment was particularly dangerous, and that in consequence thereof the plaintiffs life was endangered and she suffered severely in health, and has not yet fully recovered.
“ V. That at various times during their married life, and more especially during the last year, the defendant has applied to the plaintiff abusive and injurious epithets, and has .used towards her abusive and injurious language, intended to disgrace the plaintiff, his wife.' That defendant has repeatedly applied to her the word “ whore,” and other disgraceful epithets, disregarding the feelings of the plaintiff, and has further declared his intention of persisting in his aforesaid disgraceful conduct with others, notwithstanding the protests of the plaintiff.
“ VI. That from the time of their said marriage and during the whole of their said married life the plaintiff has been obliged by her own labor to support her children, herself, and in great measure the defendant in this action. That the plaintiff has since and during her removal to the city of Yew York, organized and carried on a business in said city, at 93 Houston-street. That all the money and most of the labor necessary for commencing and conducting said business have been furnished by plaintiff and the son of plaintiff and defendant. That said money was the individual earnings of the plaintiff. That defendant has at certain times when entrusted with the management of certain portions of said business, and the collection of certain claims due to the plaintiff in her business as aforesaid, squandered and appropriated to himself the moneys collected thereupon, and has on various occasions returned to the plaintiff but a- small part of the moneys collected by him on her account as aforesaid. That the plaintiff has paid all the expenses of the household out of her own earnings, and that defendant has fur
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nishecl nothing towards the same, and that plaintiff has uniformly paid all the bills owing on account of said business, and that defendant never furnished anything towards payment of the same. That when defendant has been at times entrusted with any of said business he has neglected and refused to attend to the same on various occasions to the considerable loss of the plaintiff, and that defendant to the neglect of said business has spent his time in the disgraceful manner hereinbefore specified, with other persons and at various places. That in the year 1862, the plaintiff out of her own money, earning and labor, advanced sufficient capital to organize .and carry on a business at the city of Washington, D. C., and that plaintiff by her own work, labor and money, paid for all goods necessary thereto, that defendant was entrusted with charge of said business. That, as plaintiff believes, said business was successful, but that defendant squandered the proceeds thereof and appropriated them to his own use, returning little or nothing to the plaintiff from said proceeds, and that plaintiff was obliged to pay by her own money and labor all the bills due and owing at the city of Hew York, on account of said business.
“ That on October 5,1870, the defendant abandoned the house of the said plaintiff, and has not since that time returned. That on the day aforesaid the defendant brought with him and introduced into the house three suspicious, all ill-looking persons, with the intention of alarming the plaintiff, and plaintiff was obliged to call others into the said house for her protection, and that thereupon defendant took from said house all his personal property, and has not since returned to or resided with this plaintiff. That since the defendant has abandoned the house as aforesaid he has refused and neglected to provide in any'way for plaintiff’s support or maintainancé, and that she is entirely dependent moon her own labors for her support.
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“That as plaintiff is informed and believes the defendant is possessed of an income of about forty-three hundred dollars per year.
“Whereupon the plaintiff prays that a separation from bed and board forever, may be decreed between the said plaintiff and defendant,' and that the defendant may be compelled by the judgment of this court to make a proper and suitable provision for the support and maintenance of the plaintiff, and that the plaintiff may have such other or further relief as to the court may seem just and right, with costs of this action.”
The special term order struck out of the complaint all that part which is printed in italics; and directed that so much of that portion of the complaint which is contained between the words “First. That,” and the words “said diseases,” as remained after striking out the words in italics should be made more definite and certain by making it read as follows:
“That the defendant (insert date), by reason of sexual intercourse with other person than the plaintiff, contracted a disease he communicated to the plaintiff, stating in like manner any other time or time at which the defendant contracted and communicated said disease.”
And further directed that the clause numbered IV. be made more definite and certain by stating at what time or times, and what place or places the defendant lorced the plaintiff to comply with his desires to a cruel and unreasonable extent.
The plaintiff appealed to the general term.
N. Gano Dunn, attorney and of counsel for appellant, made the following points:
I. That portion at special term which requires the plaintiff to state at what time or times the defendant contracted the diseases mentioned is unreasonable. It
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is from the nature of the case impossible that the plaintiff should have information as to such dates. The revised statutes required only that the plaintiff should set forth times and places with resonable certainty.
II. An allegation, setting forth improper conduct of the defendant with the female servants of the family, and with other females, is proper in a complaint for limited divorce. Such conduct is an outrage on the feelings of the wife, and comes within the definition of cruelty. It is furthermore such conduct as renders it improper for the wife to live with the husband. Cruel and inhuman treatment need not consist of injury to the person of the plaintiff (Smith v. Smith, 2 Phill. 207 ; Popkin v. Popkin, 1 Hagg. Ecc. 768 ; Durant v. Durant, Id. 733; Bihin v. Bihin, 17 Abb. Pr. 19 ; Bishop on Marr. & Div. 725, 726, 732).
III. The allegation of such conduct on the part of the defendant in this action, as set forth in the comp laint, is sufficiently definite as to times, places and circumstances.
IY. S<5 much of the said order as requires the plaintiff to state at what time or times the defendant contracted the diseases mentioned in the complaint, and so much of said order as strikes out the third allegation of the complaint, should be reversed.
F. Sherman Smith, attorney for respondent.
James M. Smith, of counsel.
This is an action for a separation from bed and board. By the common law a court- of equity had no jurisdiction to decree a separation or limited divorce (Perry v. Perry, 2 Paige, 501). The j urisdiction is created, and the cases in which an action for a separation or limited divorce may be brought, are defined by statute (2 Rev. Stat. 146 ; 3 Rev. Stat. 5 ed. 237). To constitute cruel and inhuman
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treatment by the husband of the wife, or such- conduct on his part towards her, as may render it unsafe and improper for her to cohabit with him, within the meaning of these terms as used in the first two subdivisions of section 51 of the statute, bodily injury or acts of personal violence are not necessary (Bihin v. Bihin, 17 Abb. Pr. 19 ); but the treatment or conduct must at least be such as to create a reasonable apprehension of bodily hurt, and the causes for such apprehension must be of sufficient importance (Whispell v. Whispell, 4 Barb. 217 ; 2 Kent Com. 126).
The statute also prescribes that the complaint in every such case shall specify particularly the nature and circumstances of the case on which plaintiff relies, and shall set forth times and places with reasonable certainty. These specific allegations present the matter upon which issue is to be joined. To be issuable, however, every circumstance thus alleged must be material in establishing some ground recognized by the statute.
The allegations, which were struck out of the complaint in this action, charged the defendant with great particularity with a series of scandalous, indecent and licentious acts committed with and upon certain females other than the plaintiff. As the action is not for a divorce on the ground of adultery, but for a separation merely, these allegations are immaterial, unless they tend to aid at least in establishing some specific ground mentioned in the first two subdivisions of the section of the statute referred to. Standing entirely by themselves, they have no such tendency, and there is no averment of any fact or circumstance in connection with which they might have become important. It is not charged that the conduct complained óf led plaintiff to apprehend personal injury to herself; she does not complain that it gave her pain. Mo effect upon either the body or mind of the plaintiff, her health or feelings is alleged. . The only injury stated is the dis
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grace which such conduct brought upon the. plaintiff and her family. No decree for separation can be based upon that. Frequent intoxication may bring disgrace, but cannot be made to work a separation. Nor do occasional outbursts of passion, from whatever cause, so long as they do not threaten bodily harm, present a ground for a limited divorce (Mason v. Mason, 1 Edw. 278 ). The allegations referred to were, therefore, properly stricken out.
That portion of the order, however, which requires the plaintiff to make the complaint more definite and certain by stating at what time or times, and at what place or places the defendant contracted the diseases in the complaint mentioned, is too broad, and must be modified so as to require the plaintiff to set forth the time or times and at what place or places the defendant communicated the said diseases to the plaintiff.
As thus modified, the order appealed from should be affirmed.
Jones, J., concurred.
Cases cited
- Bihin v. Bihin 17 Abb. Pr. 19 p. 56, p. 57
- Whispell v. Whispell 4 Barb. 217 p. 57