People v. Meyer

12 Misc. 613 | New York Court of General Session of the Peace | 1895

GOFF, R.

The police justice has jurisdiction to entertain the complaint of the complainant, and to judicially pass upon and determine the question whether the appellant was a disorderly person for failure or neglect to support his wife and child (section 900 of the Criminal Code, and sections 1454 and 1455 of the Consolidation Act). I find mo provision of law requiring the complaint to be made by the commissioners of charities and correction. Any person may make the complaint. The appel I'ant and his wife, while -residents of the city of Brooklyn, entered into an agreement—through an intervening trustee— of separation, which provided that the sum of fifteen dollars per week should be paid to the wife for the support of herself and child. This was separation, not abandonment; and, so long as the ap-pelant continued to pay the stipulated sum, he did not abandon his wife. Whether the separation took place in the city of Brooklyn or in the city of New York is immaterial. The material question is, where dd th-e abandonment take place, if the appellant did abandon his wife ? The evidence shows that after the separation the wife left Brooklyn, and took up her residence in New York, and at the time when the complaint was made she was actually residing in the latter city. The appellant was bound to pay the stipulated sum to his wife, no matter where she resided. He, having agreed to the voluntary separation,was precluded from controlling her choice as tó a place of residence. His domicile was no longer her domicile, and therefore she had a right to make her residence in New York. It is conceded that he failed to pay the stipulated fifteen dollars per week, that by his own action he reduced the payment to twelve dollars per week, and finally offered her three dollars a week which the trustee refused. The criminal law cannot enforce the observance of contracts; neither will the authorities institute or prosecute proceedings of a criminal nature for such a purpose. Did the appellant abandon his wife and child in the city of New York without providing for and furnishing them with adequate means of support, so that there w-ould be danger of their becoming a burden on the public? That was the question for the magistrate to decide, and he decided, it affirmatively, and, in my opinion, correctly. The contention by the appellant that the wife was limited in her remedy to an action through the trustee on the tripartite agreement cannot be sustained in this proceeding. That is a matter for the husband and wife to settle; but the matter of interest for the taxpayers of this city is that they should not be called upon to pay the legal obligation of the husband. The fact that husband and wife voluntarily separated under an agreement that he should' pay her a stipulated weekly sum, and he violates that agreement, and then sets it up as a bar to a prosecution to compel him to sup•port Ms wife, is a contention against law and reason, and, if sustained, would enable Mm to take advantage of Ms own wrong. It is urged that the wife did not, in the city of New York, demand from the husband support, and consequently he was not obliged to provide for her until such demand was made. She was not obliged to make demand upon him. A man who has an imperative duty to perform shall not wait until he is asked to perform that duty. The justice did not fix an excessive sum for allowance. The appellant’s proposal to provide a home for the wife were of such a nature that the justice was right in refusing them. On the whole, the judgment of the special sessions is affirmed.