City of New York v. Kaiser , 210 N.Y.S. 598 ( 1925 )

Edwards, P. J.:

The appellant was convicted as a disorderly person for failure of performance of duty as husband, and the conviction is before us for review on his appeal.

The facts are quite peculiar. The wife says that at the end of an evening, for no apparent reason except a trivial dispute, the appellant went away from their home and did not return that night. He says her mother called and as she announced intention of remaining for the night, and there was only one bedroom in the three-room apartment he and his wife occupied, he went to his father’s to sleep. Afterwards he came back, and it seems clear from the testimony of both that they agreed to separate, the difference in their narratives being chiefly concerning the actual division of their household effects between them and the agreement between them in respect to it. She went to live with her mother. The husband sued in the Supreme Court for separation on the ground of abandonment by the wife. Pending that action the wife instituted an action for annulment of the marriage on the ground of sexual impotence of the husband. Both parties answered respectively in those actions, the wife making no counterclaim in the separation suit. Both actions seem to have been tried and dismissed on the merits. Thereupon this proceeding was instituted on the complaint of the wife alleging abandonment and failure to support.

The wife is a young woman, the matrimonial cohabitation continued only about two months, and there are no children. The wife still insists that her charge in the annulment suit is true and declares that she would not resume such cohabitation, and the husband so far as the evidence discloses has made no offer to renew it. The appellant paid temporary alimony during part of the time of pendency of the actions, but thereafter and until the order was made in this proceeding he has not contributed to the support of the wife.

I can find no evidence in the record that the wife is without means; and it is clear that the nervous condition described as affecting her does not constitute a disabling infirmity preventing her from earning a living in any occupation.

We must consider, therefore, whether the situation thus disclosed justifies the order of the trial court.

This consideration involves, of course, interpretation of the statute (Inferior Criminal Courts Act [Laws of 1910, chap. 659], § 74, as amd. by Laws of 1919, chap. 339). As to the matters here pertinent this is substantially identical with section 899 of the Code of Criminal Procedure, with two exceptions. Section 74, as amended, provides (1) “ The wife, * * * is hereby declared to be a primary beneficiary of the order,” (2) and evidence that she is “ without means shall be presumptive proof ” of her “ liability to become a charge upon the public.” The first of the above provisions is elaborated in the subsequent directions of the section as to the disposition of moneys recovered upon a forfeited undertaking. Aid in determining what those provisions mean is at hand, I think, on several sides.

The history of matrimonial actions in this State, including an action for separation for the husband’s misconduct, shows that from early times jurisdiction was in the Court of Chancery (See 2 Kent’s Com. [14th ed.] 125 et seq.; 2 R. L. 1813, p. 200, § 10; 2 R. S. 146, § 50 et seq.), there being no ecclesiastical courts here. The Supreme Court received the jurisdiction as successor to the chancellor. (N. Y. Const, art. VI.) The actions, therefore, belong to the equity branch of the Supreme Court. The Constitution at the time of the enactment of the amendment of the statute in 1919 forbade the conferring of equity jurisdiction upon the Family Court. (Art. VI, § 18, before the amendment of 1921. See Allen v. Wolkof, 182 App. Div. 634, 636.)

The proceeding under the designation contained in the title of part VI of the Code of Criminal Procedure is a special proceeding of a criminal nature.

It is to be noted also that the present section 74 recognizes its quality in the repeated use of the expression “ danger of becoming a burden upon the public.” Moreover both variances from the general statute in this section apply to any dependent entitled to relief by reason of his destitution.

I conclude, therefore, without extending the argument, that the special act does not differ essentially from the general law; that the provision making the dependent the primary beneficiary means that the policy of preventing the disorder of pauperism of a dependent is to be effected by compelling relief by the one obligated as soon as that condition is actual or imminent; and that the rule of evidence creates only a presumption of fact for expediting the presentment of the case by the prosecution.

Hence it is my opinion that repeated pronouncements by authority as to the scope and purpose of proceedings like this under the Code of Criminal Procedure apply and govern here.

“ Magistrate’s courts were not organized to adjust domestic quarrels.” (People v. De Wolf, 133 App. Div. 879; People ex rel. Demos v. Demos, 115 id. 410; People v. Mahoney, 172 id. 962; People v. Pollock, 198 N. Y. Supp. 569.)

On the evidence it seems reasonably certain that at the end of the brief matrimonial experience the parting of the spouses was a separation by mutual consent and, therefore, that neither abandoned the other, according to the sense of the word abandonment, as used in the statutes relating to matrimonial duty. The judgment of the Supreme Court, having full jurisdiction of the subject-matter, decided indeed that the wife did not abandon the husband; but it did not decide that he abandoned her; and her own testimony as well as her course in the litigation in the Supreme Court shows conclusively not only that the separation was with her acquiescence, but also that it was in accordance with her desire and determination. Thus developed, the case presented to the Family Court only the question whether the failure of the appellant to support the wife living apart from him caused her to be in danger of want for the necessities of life. I think the answer should have been in the negative.

I advise that the order appealed from be reversed on the law and the facts, the proceeding dismissed and the appellant discharged.

Since dismissal now is not approved by a majority of the court, I concur in the determination on this appeal suggested by Mr. Justice Fees chi —reversal on the law and the facts and direction of a new hearing.