9 N.Y.S. 827 | N.Y. Sup. Ct. | 1890
An examination of the evidence in this case has not satisfied me that such a state of affairs was shown as justified the decree. If the learned justice who passed upon the question as to whether the decree in favor of the plaintiff should be entered or not had had the advantage of hearing the witnesses testify, and thus had been able to judge better than we could do in respect to the testimony and the weight to be given to the testimony offered by the witnesses, we should have very great hesitation in disturbing the conclusions to which he has arrived. It is undoubtedly true that it is inexpedient in cases of this description to attempt to have issues framed to be tried by a jury, for the reason that all that such pretended issues can be is a submission of a question to the jury as to whether certain evidence is true or not; and it is impossible for the court, even with the finding of the jury before it in respect to the truth of this particular evidence, to determine as to whether a decree of limited divorce should be granted or not, because that depends upon all the circumstances surrounding the happening of the particular event the truth of which the jury have found; and, had not the attempt been made to have the issues in this case tried before a jury, probably the dilemma in which we now find ourselves placed could not have occurred. These issues were submitted to the jury, on most of which the jury found in favor of the defendant. They found, however, one act of violence in 1884, the separation having taken place in 1886, and one occasion upon which vile and abusive language was used by the defendant to the plaintiff, which occurred in January, 1885. The learned judge, however, who tried the case after the rendition of this verdict, has found other occasions on. which the defendant was guilty of violence, and also of the use of vile and abusive language towards the plaintiff; and he finds, upon a consideration of the evidence, that such cruel and inhuman treatment of the plaintiff upon the part of the defendant was shown as rendered it unfit for her to continue to live with him. An examination of this testimony shows undoubtedly that the defendant has at times acted shamefully towards his wife, and has treated her in a manner which was wholly unjustifiable. But it is further apparent that incidents trivial in themselves have been magnified willfully in the greatest degree, in order to make out a case of cruel and inhuman treatment. The exposure of the pistol, in respect to which so much has been made, was undoubtedly an act of carelessness • upon the part of this defendant, and was utterly unjustifiable, but there is not the slightest suspicion that it was accompanied by any threats, or that the plaintiff had any idea that she was placed in any danger. The facts in regard to the use of the poker have been perverted by the witness in a marked degree. There was certainly an exhibition of temper upon the part of the defendant upon this occasion which was unjustifiable, but there were no threats against the plaintiff, and the plaintiff knew she was in no danger of being assaulted or injured in any way, shape, or manner. It is perhaps true that it was owing to his habits of drinking that the defendant gave way to these outbursts of temper, but there is not the slightest particle of evidence going to show that the plaintiff was in any fear of the defendant. On the contrary, the fact that upon one occasion, when the defendant had been drinking, he stayed in the park for a considerable time, within sight of his house, in order to get sober before going in, showed that he had a lively perception of the kind of reception which would await him did he present himself in that condition, and the interview which took place after such presentation re-
Daniels, J., concurs. Brady, J., concurs in the result.