16 N.Y.S. 363 | N.Y. Sup. Ct. | 1891
The action was brought by the plaintiff to secure a separation from the defendant, who is her husband. They were married on the 8th of June, 1887, and had one child, a daughter, born on the 3d of June, 1888; and the plaintiff left the defendant’s residence on the 28th of August of the same year. The case on her part depended chiefly upon her own evidence as ■a witness; and in the course of it she testified that the defendant, on various occasions, had used extremely foul and indecent laguage to her, making serious accusations of marital misconduct, threatening her with personal injury, and finally, on one occasion, seizing her by the throat, and severely choking her. And that was amply sufficient under the authorities, if her statements had been accepted as the truth, to sustain her action. Ruckman v. Ruckman, 58 How. Pr. 278; Uhlmann v. Uhlmann, 17 Abb. N. C. 236; Kennedy v. Kennedy, 73 N. Y. 369; De Meli v. De Meli, 120 N. Y. 485, 24 N. E. Rep. 996; Lutz v. Lutz, (Sup.) 9 N. Y. Supp. 858.
But the difficulty with the plaintiff’s case consisted in the fact that there was but little sustaining evidence, and that was obtained from her brother and her mother, while the defendant in his evidence positively contradicted •all the statements which the plaintiff had made having a tendency to maintain her action, except that relating to the final occurrence, when her testimony was that he had choked her. That, however, he denied, but stated, by way of explanation, that á disagreement had arisen between them concerning a cloth used to cover a table in their library; that this had been once removed by himself, and afterwards restored, and then cut into pieces, and torn by himself to prevent it from afterwards going upon tile table, and while •he was employed in this destruction of ths table-cloth he testified that the .plaintiff appeared, and exciting words were passed between them, when he directed her to leave the room, and stated that she refused to go, and continued to abuse him, when he said to her that if she did not go from the room he would put her out, and afterwards took her by the shoulders and moved her out, being careful not to hurt her; that as she went out she seized him by the neck-tie, and began to call the cook, when he got her over towards the bed, and pushed her on it, and tore himself loose, and then went into another