264 A.D. 538 | N.Y. App. Div. | 1942
Plaintiff and defendant were married in the city of Newark, N. J., on February 14, 1931. At that time plaintiff was about thirty-three years of age, while his wife was thirty-six
Almost from the" outset the marriage was not a happy one. The record discloses that the defendant was possessed of an exceedingly jealous disposition; indulged very frequently in the use of vile epithets toward her husband, not only in private but also in public. She assaulted him with knives on at least two occasions and bit him, drawing blood. She freely admitted the expenditure of large sums of her husband’s money, her wearing apparel alone costing him “ about $100 a week.” She had “ charge accounts all over.” According to her testimony, during the last four years the parties were together they lived approximately at the rate of $35,000 or $40,000 a year. Apparently the earnings of the plaintiff did not justify any such expenditure. However, the record indicates that plaintiff’s uppermost thought was to keep peace in the family.
In 1938, at the insistence of the defendant, plaintiff purchased a house at Great Neck, Long Island, although, for business reasons, he did not wish to do so. Later, after a previous litigation was instituted by the defendant against plaintiff for - a separation, the controversy at that time was settled in part by the conveyance by plaintiff to the defendant of the house at Great hi eck. Subsequently,' much to the embarrassment of the plaintiff, defendant caused a sign which read, “ My 1939 Lemon for Sale,” to be placed on the house. "While defendant contended, apparently without any foundation in fact, that plaintiff had suggested the wording ■ of the sign, it was removed only after the builder of the house had threatened to sue her.
During the summer of 1939 defendant told the plaintiff that she desired to.go to Maine for a vacation of a couple of weeks. She obtained from him the funds to cover the expenses of the trip. Two or three days later she visited plaintiff at his office and told him, in effect, that she had been away but due to illness she had to return. On cross-examination she admitted that she had not gone away but had remained in the city. The purpose of deceiving plaintiff, as outlined by the defendant, was to have a maid who was employed in the household “ spy ” on him while she pretended to be in Maine.
A disinterested witness testified as to an incident which had Recurred on the Labor Day week-end of 1940 at Grossinger’s Hotel,
Defendant’s purchases in the different stores in which she had charge accounts increased to such an extent that it became necessary for plaintiff to close the charge accounts. He sent out notices to that effect to the stores on May 6, 1941. After he did so, the defendant said that she would no longer cohabit with plaintiff. She threatened that in the event he would not reopen the accounts, she would send him to jail for ten years, and that, in effect, she would notify the income tax bureau “ to search through my [plaintiff’s] books.” Even though the charge accounts were stopped, defendant continued to make purchases. On May 16, 1941, she purchased a coat for $575 from J. Weinig & Sons. Later, after a refusal by plaintiff to pay for it, a suit was instituted by the sellers against the plaintiff and the defendant. A verdict was rendered by a jury in favor of Jacob Weiner, plaintiff herein, and against the defendant, Lola Weiner. Other actions were also instituted.
More incidents, too numerous to mention, could be recounted. We think sufficient has been shown, however, to indicate that this plaintiff was justified in refusing to continue to live with and support the defendant. We have determined, therefore, that the court at Special Term should have entered a judgment of separation in favor of the plaintiff for the following causes, as outlined in section 1161 of the Civil Practice Act: (1) The cruel and inhuman treatment of plaintiff by the defendant. (2) Such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the latter to cohabit with the former.
The judgment, in so far as it dismisses the complaint, should be reversed and judgment entered in favor of the plaintiff for the relief prayed for in the complaint. In so far as the judgment dismisses the counterclaim, it should be affirmed.
Martin, P. J., Townley, Cohn and Callahan, JJ., concur.
Judgment, in so far as it dismisses the complaint, unanimously reversed and judgment directed to be entered in favor of the plaintiff for the relief prayed for in the complaint. Judgment, in so far as it dismisses the counterclaim, unanimously affirmed. Settle order on notice, reversing findings inconsistent with this determination and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.