194 A.D. 841 | N.Y. App. Div. | 1921
This case was before us on the pleadings in 188 Appellate Division, 29. The plaintiff and her husband had resided for eighteen years at Melrose in a house owned by him, when he without cause, on February 1, 1906, permanently abandoned her and took up his residence with his mother on the opposite side of the street. She obtained necessary provisions where they had formerly obtained them and he paid therefor. ' He paid the taxes and insurance upon the property. She, from time to time, improved the grounds by planting trees and shrubs, papered and painted rooms' in the house and did many' little things _ to make them permanently comfortable and desirable, and she continued to live there in that way until the house was destroyed by fire January 5, 1918. Thereafter he wrote her, giving her the right to select one of four houses mentioned for her home, which carried with it the idea that she was to five there without him. This action is brought upon the theory that after the house was destroyed the insurance money from it should be taken for rebuilding so that her old home would be restored. The facts as stated
A man owes his wife not only a bed and something to eat and wear, but a home of which he is a part. She is entitled to cohabit with him as his wife, to his society and companionship.
Under the Revised Statutes (2 R. S. 147, § 51) no action for separation could be maintained by a wife for abandonment unless there was a “ refusal or neglect to provide for her.” But under the Code of Civil Procedure (§ 1762) there are four cases in either of which separation may be had: (1) Cruel- and inhuman treatment; (2) conduct rendering it unsafe or improper to cohabit; (3) the abandonment of the plaintiff by the defendant, and (4) where the wife is plaintiff, for neglect or refusal to provide for her. Therefore, an action for a separation may be brought for an abandonment although support is provided. (Tabor v. Tabor, 140 N. Y. Supp. 313; Ahrenfeldt v. Ahrenfeldt, Hoff. Ch. 47.) When he abandoned her, although he continued to supply her with necessaries, she could still have had a judgment for separation, with such provisions in it as justice and the circumstances require. (Code Civ. Proc. § 1766.)
If a wife permanently déserts her husband he may have a judicial separation. If the agreement was made, it condoned
All concur, except H. T. Kellogg and Kiley, JJ., dissenting.
Judgment reversed and new trial granted, with costs to the appellant to abide the event.