22 N.Y.S. 567 | N.Y. Sup. Ct. | 1893
I am unable to see how we could properly disturb the findings of the learned referee upon the questions of fact submitted to him. It was a case of conflicting evidence, and we feel concluded by his decision. There was sufficient testimony given to sustain his conclusions upon the facts, and, such being the case, the plaintiff was entitled to a judgment of separation. The testimony shows, and the referee found, that defendant, without reasonable cause, falsely and repeatedly accused plaintiff with being an unchaste woman, with having had unlawful intercourse with one Solo-man Levi, and with other men. I think such an accusation constituted cruel and inhuman treatment of plaintiff by defendant, sufficient to justify a judgment of separation if no other ground of complaint existed. Such a charge, if false, and made without sufficient cause, as found in this case, is more cruel than blows or any mere physical violence. The duty devolves upon a husband to protect his wife,—not only her person, but also her reputation; and when, instead of fulfilling that duty, he cruelly traduces her character, the court can properly protect her by a judgment of separation. The testimony in this case shows that defendant not only cruelly and repeatedly aspersed the character of his wife, but also assaulted and otherwise ill- treated and abused her.
If there was any condonation by plaintiff, subsequent acts of cruelty committed by defendant revived the condoned offenses. Hence the judgment, as far as it provides for a separation of plaintiff from defendant, must be affirmed.
The defendant objects to the allowance of $500 awarded to plaintiff in the judgment “for a further reasonable and necessary counsel fee and allowance in this action, for the costs and expenses, services,, and disbursements of her attorney and counsel herein, expenses incurred and to be incurred to the entry of the judgment.” This objection raises two questions: Can any extra allowance or allowances for
If, however, a provision could'be properly made in the judgment for expenses of the wife in an action, such an allowance, I think, could not, under section 1769, supra, be made for past expenses,— those already incurred by the wife,—as it appears was done in this case. Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. Rep. 735. The opinion at special term suggests that although the court, on a motion before judgment, has no power to order the husband to pay past expenses of counsel in the action, as determined in Beadleston
Code Civil Proc. § 1769, provides that during the pendency of actions for divorce or separation “the court may, in its discretion, make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife;” and that “the final judgment in such action may award costs in favor of or against either party, and execution may be issued for the collection thereof as in an ordinary case, or the court may, in the judgment, or by an order made at any time, direct the costs to be paid out of any property, sequestered or otherwise, in the power of the court.”