151 Misc. 198 | N.Y. Sup. Ct. | 1934
The plaintiff brings this proceeding for a separation from her husband, alleging cruelty and failure to support. The defendant denies the charges of cruelty and alleges continued misconduct on her part as justification for his refusal to maintain his wife. By way of counterclaim he also urges the behavior of his wife as grounds for a decree of separation in his own behalf.
The misconduct consists in persistent close association with a young man, Bjorkman, accompanied by many instances of demon
The plaintiff denies the charges made by her husband; but the evidence is clearly contrary to her contention that her association with the young man was casual, platonic and sister-like. No proof exists, however, of actual adultery.
It is clear that such misconduct on the part of the plaintiff must bar her in a court of equity from the relief she seeks. (Civ. Prac. Act, § 1163.) The modem conception of the relation between the sexes does not frown on ordinary association between a married woman and another man within the bounds of friendship alone; but when the association develops into those intimacies of personal contact to which so many witnesses have here testified, even the most liberal thought must disapprove it. Certain it is that no husband should be compelled in equity to maintain a wife while she continues such conduct.
A more serious question arises in the determination of the counterclaim. Do the facts warrant a decree of separation on behalf of the husband against the wife? The appellate courts have repeatedly held that open and notorious adultery on the part of one spouse entitles the other to a decree of separation on the ground of cruel and inhuman treatment. (Hofmann v. Hofmann, 232 N. Y. 215; Jacobstein v. Jacobstein, 201 N. Y. Supp. 1; affd., 209 App. Div. 846; affd., 240 N. Y. 693.) I have been unable, however, to find appellate determination that the conduct of the spouse proven at this trial amounts in law to the cruel and inhuman treatment contemplated by section 1161 of the Civil Practice Act. Another court at Special Term has held that it does. (Morris v. Morris, 108 Misc. 228.) I concur in that view. This plaintiff flaunted her intimacy with Bjorkman not only before the neighborhood, but also before her husband. The gossip about it reached the ears of her husband repeatedly. She admitted to others her affection for Bjorkman. Can it be said that the mental suffering of the husband naturally resulting from these circumstances is not sufficient cause for relief merely because no act of actual adultery has been shown?
The husband is entitled to a decree of separation. I believe,
I, therefore, shall award a decree of separation to the defendant for a period of three years. At the expiration of that time, unless the parties have become reconciled in the meantime, the plaintiff may again commence a proceeding. In such event the burden of proof should be upon her to establish that she has been leading a different mode of life and that she has become entirely dissociated from the man who was the cause of the present situation. The justice then hearing the testimony may consider all of the circumstances, including those adduced at this trial. (Murdock v. Murdock, 148 App. Div. 564.)
Submit findings.