139 Misc. 746 | New York Court of Special Session | 1931
Lead Opinion
An order was made herein adjudging the defendant a disorderly person and directing him to pay eight dollars per week for the support of his wife.
Under the provisions of section 74 of the Inferior Criminal Courts Act (Laws of 1910, chap. 659, as amd. by Laws of 1919, chap. 339) a husband who fails to support his wife and there is danger that she may become a public charge is to be adjudged a disorderly person.
The testimony adduced before the magistrate in this case justified him in concluding that the complainant was incapacitated, unable to support herself and in danger of becoming a public charge.
It appears that the parties hereto have lived separate and apart for approximately twenty-five years and that several applications have been made to the Supreme Court by her for alimony, which
The judgment herein adjudging the defendant a disorderly person and directing him to pay eight dollars per week towards support of the complainant is, therefore, affirmed.
Dissenting Opinion
(dissenting). This is an appeal from an order of the Family Court adjudging the appellant a disorderly person and directing the payment by him of a weekly allowance for the benefit of his wife who, due to her broken health, is likely to become a public charge.
These parties intermarried thirty-three years ago and for the past twenty-five years husband and wife have lived apart, the complaining witness having deserted her husband. From time to time during that period she has had recourse to the City Magistrates’ Court for support without success, and also applied for alimony in a separation action in the Supreme Court where her prayer was denied because she failed to justify the abandonment of her husband. She has, however, supported herself, until she took sick and became physically incapacitated.
The appellant now contends that such abandonment without just cause constitutes a defense to this proceeding and that he cannot legally be adjudged a disorderly person under these circumstances.
These summary proceedings are instituted by the city of New York for its own relief and for the public indemnity (People ex rel. Commissioner of Charities v. Duffin, 68 Misc. 290, 292; People ex rel. Kehlbeck v. Walsh, 11 Hun, 292, 294); and the authority therefor is found in section 899, subdivision 1, of the Code of Criminal Procedure and section 74 of the Inferior Criminal Courts Act (Laws of 1910, chap. 659, as amd. by Laws of 1919, chap. 339). Section 899, subdivision 1, of the Code, so far as applicable here, provides: “ The following are disorderly persons: 1. Persons who actually abandon their wives or children, without adequate support,
This wife sought a limited divorce on statutory grounds, but after her application for alimony and counsel fee was denied, the suit for a judicial separation was abandoned; and, so far as we know, the case was never prosecuted to judgment. Where the wife actually leaves the domicile of the husband voluntarily and willfully and without good reason, she practically renounces her rights, and the husband cannot be compelled to maintain her. (Constable v. Rosener, 82 App. Div. 155; Reischfield v. Reischfield, 100 Misc. 561; Wirth v. Wirth, 184 App. Div. 643.)
But only where the amount, as here, is granted simply to prevent absolute poverty and the wife from becoming a public burden, must the interests of the public and the taxpayers be considered as superior and controlling so as to avoid a charge being made upon the public purse. (See People v. Smith, 139 App. Div. 361, 363.) In People ex rel. Commissioner of Public Charities v. Wexler (152 App. Div. 67, 69) the court said: “ The purpose of the statute is not to adjust matrimonial differences, but to furnish a means of relieving the city from the burden of supporting an abandoned wife or children and of placing the burden where it rightfully belongs * * *. As said in People ex rel. Feeney v. Dershem (supra), the statute was 1 designed to prevent her from becoming a charge upon the public purse/ It applies not only to one who ' abandons ’ but equally to one who ‘ leaves ’ his wife in danger of becoming a public charge.” The court in the latter case also referred to People v. Crouse (86 App. Div. 352), and, speaking of that case, said: “ There, it seems to me the main purpose of the statute was
I cannot agree with my learned colleagues in their affirmance of the order appealed from, inasmuch as it is not established here that the defendant actually left the complainant in danger of becoming a burden upon the public. The words of the statute under consideration are “ actually abandon * * * or leave them [wife and children] in danger of becoming a burden upon the public.” This presupposes a willful abandonment and neglect to make provision within his means after actual knowledge on the part of the defendant of the disability and destitution of his wife. I do not understand how this defendant could be held to have intentionally left his wife, within the meaning of “ leave,” which is the word in the statute, when he had no knowledge of her physical and financial condition; nor did he have any means of ascertaining such facts. It seems to me but fair, to say the least, that before an adjudication can be made, there must be proof of notice and a demand. Yet the defendant is summoned into court, charged with a violation of section 74 of. the Inferior Criminal Courts Act (Laws of 1910, chap. 659, as amd. by Laws of 1919, chap. 339), and, after a summary trial, held to be a disorderly person and ordered to make payments or stand committed to the workhouse in default of a bond to that end. While this statute is not in fact a Poor Law it.is in effect such, in order to prevent poverty and for the common welfare; and cases such as these deal with conditions rather than with specific criminal acts (People v. O’Neill, 117 App. Div. 826); hence knowledge thereof must be brought home to defendant's notice. ' He had no way of knowing these conditions, since there was no duty to support his wife after her abandonment, without cause, of his domicile. (See People ex rel. Heinle v. Heinle, 115 Misc. 469.) According to this record, no demand was ever made upon the defendant; he was given no notice that his wife was liable to become a public charge; his wife had not communicated with him in any way; and he had made no refusal. Assuming for the purposes of this point, that the husband has an imperative duty to perform here under the circumstances of this case, I am of the opinion that a demand is a condition precedent before he can be found guilty of or adjudged to be a disorderly person.
The principle of the last case is applicable here. I recognize that the purpose of the statutes above referred to is “ to protect the public from such a charge, rather than to adjust domestic relations.” (People v. Crouse, 86 App. Div. 352, 355.)
In fact, if We examine the indemnity bonds in all cases like this, provision is to be found therein that the defendant covenants to indemnify the county by reason of his conduct that has created the danger of his wife becoming a burden upon the public. The whole theory of the statutes under consideration and the policy of the law is to guard against alimony dodgers, deserters and negligent husbands who fail to provide for their wives. How can a man who has never failed to perform his duty up to the time of the desertion by his wife, be held criminally responsible and incarcerated if he fails to provide and execute such an indemnity bond, by the very recitals of which he has failed to perform his duty when, in truth, the wife never has been an abandoned and unsupported spouse.
I feel it my duty, as I understand the law, to vote for the reversal of the order appealed from and to grant the defendant a new trial.
Concurrence Opinion
concurs.
