Doe v. Doe , 59 N.Y. Sup. Ct. 405 ( 1889 )

Learned, P. J.

A single act of adultery is such a violation of marital obligation as to justify a decree of divorce. Prom the nature of the wrong, it is evident that subsequent sexual cohabitation, with knowledge of the adultery, is a condonation or forgiveness. The reason of this is manifest, without explanation. But, on the contrary, cruelty as a ground for separation is generally, perhaps always, a course of conduct, nota single act. It is hardly, therefore, possible that the injured party should", on occasion of the first wrong, - separate herself, and refuse to live with the wrong-doer. The effort to endure 'unkind treatment as long as possible is commendable. We cannot, therefore, ■ consider sexual cohabitation after acts of cruelty as condonation in the sense in which it would be after an act of adultery. The cases are quite different. . Of course, there may be a forgiveness for cruelty which perhaps would bar ’an action. But it would not be just to treat mere cohabitation as a forgiveness of past cruelty in every instance; and, even where there has been actual forgiveness enough to bar an action based on previous cruelty, still proof of -siuch previous cruelty may be very important on a trial, as giving character fito-subsequent acts, showing that they arise from a settled and permanent,jmode of acting, and not from hasty impulses, for in such cases the question .is ‘Whether it is safe and proper for the plaintiff to live with the defendant. -Heriforgiveness of past unkindness or cruelty does not show conclusively that -•it isisafe and proper for her to live with the defendant, in view of the whole .icourse of his conduct. Examining the present case in view of these prinei.■'piés.yive are satisfied that there were no errors committed on the subject of •.•condonation to the prejudice of defendant. Burr v. Burr, 10 Paige, 20, at 1 page 32..

The question on the merits of the case is one almost entirely of fact; that is, whether the evidence shows such a condition of affairs between the parties, arising out of the unkind and cruel acts of defendant, as to justify the plaintiff in her demand for a separation. Any one must see that acts which between parties of some habits of life would pass almost unnoticed would, among those of different habits, be unkind, and cruel in ahigh degree; so that every case must be judged according to the circumstances and the modes of life of the parties. This question is one which the learned judge at the special term was better fitted to decide on his hearing of the parties themselves and their witnesses than we are on the appeal upon the printed case. We have examined the evidence carefully, in order to see whether there is any ground to reverse the learned judges’ findings and decisions. It seems to us •that, in such an unfortunate controversy as this is, between parties both of whom have apparently had a good reputation, and have generally maintained a good character, it is not desirable that we should give any unnecessary publicity to the details of facts. To state the words and acts of the defendant, as proved in the evidence on which the learned judge based his decision, would really be of no benefit to any one. It would only tend to perpetuate matters which should, as far as possible, be allowed to be forgotten, for the sake not only of these parties, but of their relatives and of their children. It is enough for us to say that, after an examination of all the evidence, we have come to to the conclusion that the decision of the learned judge should be affirmed- bn the merits of the case.

The question as to the allowance of alimony for plaintiff and for her daughter has been somewhat discussed. It is seldom an easy matter to determine exactly what is reasonable in such cases. The court possesses the power in the future to modify the amount, should circumstances require. We think that it was reasonable to give the plaintiff the custody of her daughter, and we do not think, on the evidence in the case, that the annual allowance given to the plaintiff for herself and that for her daughter was excessive.

The court also allowed to the plaintiff to have for her use and for the use ■of said daughter sucli portion of defendant’s household goods as the statute provides must be set apart for a widow and minor children. The defendant has two children younger than said daughter, and all the children are minors. Those two remain -with him. The court appointed two persons, who were to appraise and set apart such articles, and a report was thereupon made and attached to the judgment designating certain articles specified under the statute, and also other articles of household furniture, amounting to $150. Code, § 1766, authorizes the court to provide for the support of the plaintiff, and the education and maintenance of the children.¹ We are of the opinion that this setting apart to the plaintiff of specific household furniture is not the mode of providing for her support contemplated by the Code. The decree seems to make a transfer of the title of the articles so designated to the plaintiff. The ■ordinary duty of a husband and father is to support his wife and his children, but he is not required to transfer property to them. We think that the law, in cases of separation, intends to compel the husband to do substantially what he was bound to do while his wife and children were living with him; that is, to support them, by supplying their daily needs, not by transferring property to them. We think, therefore, that the decree should be reversed as to the compelling the defendant to transfer to plaintiff the said articles of household furniture; otherwise it should be affirmed. The plaintiff should have the costs of the appeal against defendant.

1 This authority is given to the court on decreeing separation, in an action brought by the wife.