124 Misc. 285 | New York County Courts | 1925
The appellant has been convicted in the City Court of Buffalo, of being a disorderly person under section 899, subdivision 1, of the Code of Criminal Procedure, which reads as follows:
“The following are disorderly persons:
“1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means.”
The only witness sworn at the trial was the complainant, Etta Meyer, and her testimony and the judgment roll in a separation action, instituted by the complainant against the defendant, constitute the entire evidence in the case.
From this evidence it appears that the complainant had been separated from her' husband for about ten years; that she had received no support from him for about five years; that she sued for a separation in the Supreme Court; that the case was tried; that the trial justice rendered his decision, and made, among others, the following “ findings of fact: ” (IV) •“ That although defendant conducted himself toward the plaintiff as a faithful husband, the plaintiff, disregarding her duties as a wife, and without defendant’s consent, abandoned and deserted the defendant and left the house provided for her by defendant on Mulberry Street in the City of Buffalo without cause or justification therefor, and has since been wilfully and continuously absent from it, and with intent not to return,” and (V) “ That by reason of the treatment accorded the defendant by the plaintiff, and because of the plaintiff’s refusal to take up her home with the defendant at the place or places provided for plaintiff, defendant was and is justified in living separate and apart from the plaintiff, and plaintiff is not entitled to support and maintenance from the defendant; ” and as a conclusion of law the trial court found (V) “ That the plaintiff is not entitled to further alimony from defendant on and after the 9th day of January, 1922.”
Upon the decision, the findings of fact and conclusions of law of the trial court, a judgment was duly entered on January 24, 1922. No appeal was ever taken by the complainant, and said judgment has never been modified. Between the entry of said judgment and the beginning of the present action in the City Court the complainant made no effort to re-establish her marital relations, nor did she ask for any support, and there is nothing in the record showing the financial condition or the income of the appellant.
A reversal of the.judgment of conviction is asked for upon two grounds: (1) That there is no evidence to warrant the allowance
The doctrine of res judicata was first definitely laid down in the case of Rex v. Duchess of Kingston (20 How. St. Trials, 355, 538) as follows: “First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction; directly upon the point, is in a like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose.” (24 Am. & Eng. Ency. of Law, 709.) The Supreme Court and the Magistrates’ Courts have concurrent jurisdiction •in actions to obtain support (Kingsbury v. Sternberg, 178 App. Div. 435, and cases cited), but the Supreme Court has exclusive jurisdiction of all matrimonial actions. “A former adjudication is binding upon parties and their privies and prevents them from litigating over again such matters as were previously at issue between them and were finally decided by a competent court.” (Williams v. Barkley, 165 N. Y. 48, 54.)
In deciding cases under this statute, which is summary and highly penal, it must be strictly construed, and the offense clearly proved. (People ex rel. Commissioner of Charities v. Cullen, 153 N. Y. 629, 635; People v. Pettit, 74 id. 320; Goetting v. Normoyle, 191 id. 368; People ex rel. Feeney v. Dershem, 78 App. Div. 626.) The main purpose of the statute is to give summary relief to those who have been abandoned without justification and are, therefore, in danger of becoming a charge upon the public. Unless there is an abandonment relief cannot be had in a Magistrate’s Court (Weigand v. Weigand, 103 App. Div. 42), and a legal abandonment must be shown to constitute the offense. (People ex rel. Demos v. Demos, 115 App. Div. 410, 413; People v. DeWolf, 133 id. 879, 881.)
The reasons why the statute for summary relief does not apply in a case where the rights of the parties have been previously
The judgment of conviction must be reversed, and the case dismissed, and an order may be entered accordingly.
