207 A.D. 545 | N.Y. App. Div. | 1924
The plaintiff contends that the defendant is an ill-tempered, vicious man; that his treatment of her was unbearable and that as a consequence while with the defendant the plaintiff led a life of misery; that his ill-treatment of her culminated after a married life of two years when the defendant by physical force tried to take the plaintiff away from a place where she was visiting to the home of his mother; that in so doing he seriously injured the plaintiff by pulling her against the door casing, injuring one of her limbs and her arms and causing injuries across her abdomen to such an extent that he caused premature birth of a child; that he was also guilty of abandonment and of neglect and refusal to provide for her. In fact, the plaintiff claims that the judgments are sustainable under all of the four grounds mentioned in section 1161 of the Civil Practice Act.
While we can find testimony sustaining a contention that the defendant at times was ill-tempered, the record shows that his ill-temper was unattended by any acts which would constitute cruel and inhuman treatment or render it unsafe and improper for her to cohabit with him with the one possible exception When, it is alleged, he laid his hands forcibly upon her to her injury as above . noted. We, therefore, disapprove, as immaterial the findings numbered 4, 5, 6 and 8. We also disapprove of findings numbered 7, 9, 10, 11 and 16, as unsustained by the testimony and the reasonable inferences deducible therefrom.
In spite of a hasty marriage, when the defendant was not financially ready to undertake it, the parties succeeded in establishing themselves in a comfortable home in Peoria, 111., where he was employed as a chemist at a monthly salary of $115 to $150. By dint of co-operation they were able to repay the borrowed money with which they started and to purchase their furniture and to
Our conclusion is that he did not leave her under circumstances constituting abandonment; that his subsequent neglect to provide for heir and the child was justified by her own unconciliatory attitude, her refusal to live with him; that he was not cruel and inhuman in his treatment of her and did not so conduct himself toward her as to render it unsafe and improper for her to cohabit with him, within the meaning of the statute. Therefore, she is not entitled to the relief sought by her. The judgments and order should be reversed upon the law and the facts and the complaint dismissed, without costs. The court disapproves of findings numbered respectively 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 and finds that the defendant was not guilty of cruel and inhuman treatment of the plaintiff; that there was no conduct on the part of the defendant toward the plaintiff such as to render it unsafe and improper for the former to cohabit with the latter; that the defendant did not abandon the plaintiff, and that there was no neglect or refusal of the defendant to provide for the plaintiff.
All concur.
Judgments and order reversed on the law and facts and complaint dismissed, without costs. The court disapproves of findings of fact numbered respectively 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16; and finds that the defendant was not guilty of cruel and inhuman treatment of the plaintiff; that there was no conduct on the part of the defendant toward the plaintiff such as to render it unsafe and improper for the former to cohabit with the latter; that the defendant did not abandon the plaintiff, and that there was no neglect or refusal of the defendant to provide for the plaintiff.