273 N.Y. 380 | NY | 1937
This is an action for a separation (Civ. Prac. Act, § 1161). Plaintiff sought to maintain her action on the grounds (1) of neglect and refusal by defendant to provide for her; (2) of cruel and inhuman treatment by defendant, and (3) that there was such conduct on the part of the defendant toward her as to render it unsafe and improper for her to live with him. Defendant denied that he had neglected or refused to provide for her or that he had treated her in any improper manner. After a trial, in which plaintiff was given every opportunity to prove her charges, the complaint was dismissed. Upon appeal, the Appellate Division, by a divided court, reversed the findings and decree made by the trial court *382 upon the law and the facts, adopted the findings proposed by plaintiff to the trial court which it had refused to make, and directed the Special Term to enter a decree for the plaintiff on the grounds stated in (2) and (3) above, which was accordingly done. From the decree thus entered and from the order of the Appellate Division, defendant has appealed to this court. From our examination of the facts, which it is our duty to make (Civ. Prac. Act, § 589, subd. 2), we are satisfied that the findings made by the Appellate Division cannot be sustained, and that the findings and decree of the trial court must be reinstated.
The parties were married February 11, 1912, and lived together as husband and wife continuously until September 6, 1934, except for a period of about six months in 1920, and for a period of about three months in 1930, when defendant felt compelled and justified because of disagreements between the parties to live elswhere than with the plaintiff. On September 6, 1934, plaintiff, voluntarily and without cause, packed her belongings and left the defendant. She gave him no previous notice that she was going to leave and left no word or notice as to where she had gone. She took her departure after he had left home in the morning for work. At all times during their marriage defendant had provided for her support and maintenance to the fullest extent within his means and had liberally provided for his son's education through college. Even after the plaintiff had abandoned him on September 6, 1934, as soon as he learned of her whereabouts, he voluntarily sent her $80 each month until this action was commenced. Both of the lower courts refused to find that defendant had refused and neglected properly to provide for or support the plaintiff.
The marriage relations of the parties were more or less unhappy from the beginning. Between 1920 and 1930, differences arising out of religious and other matters became more and more pronounced, for all of which *383
plaintiff was largely responsible. Exclusive of testimony relating to such disagreements and quarrels, plaintiff relied upon two specific instances of cruel and inhuman treatment. The first occasion occurred on a Sunday morning in 1930, when plaintiff interfered in an attempt by defendant to have his son attend Sunday school. Plaintiff testified that defendant struck her at that time. This, defendant denied. There were no witnesses to the incident and no testimony to corroborate the story of either. The trial court did not believe her story. Where truth hangs upon the credibility of witnesses, courts should consider the advantages of the trial court who has seen and heard the witnesses. (Boyd v. Boyd,
Otherwise, giving plaintiff the advantage of every favorable inference that can possibly be drawn from the testimony, this record contains nothing further than that there were more or less frequent quarrels between the parties and incompatibility. That furnishes no ground for a decree of separation in this State. (Donohue v. Donohue,
The record here affirmatively shows that the plaintiff apprehended no danger of bodily harm from anything which arose out of any of the quarrels between the parties. None of them interfered with her social or church activities. It is quite clear that she had no fear of violence from her husband, for she continued to live with him steadily after the incident in March, 1934, for a period of six months until she voluntarily and without cause abandoned him. The evidence here is undisputed that the defendant has always been a man of good habits, a steady worker and a good provider. There is not a shred of evidence upon which there could be based a finding that his habits or conduct were such as to make it unsafe or improper for plaintiff to live with him.
The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.
CRANE, Ch. J., LEHMAN, O'BRIEN, LOUGHRAN and FINCH, JJ., concur; HUBBS, J., taking no part.
Judgment accordingly. *385
