People v. De Wolf

Robson, J.:

Defendant’s wife is the complainant who verified the information upon which the justice issued the warrant for defendant’s arrest. The specific act, or omission of duty, with which he is charged in the information, and which is recited in the judgment convicting him of being a disorderly person, is that he “is neglecting to provide for his wife according to his means.” The marital experience of these two people, who were both of mature years, had extended over a period of about two and one-half years at the time these proceedings were instituted. Defendant is a farmer of moderate, but sufficient, means. [The home where he has always lived is upon a farm of fifty acres, which adjoins an eighty-acre farm owned by him, upon which there is no dwelling house. -Subject to his mother’s life estate in the fifty acres he owns the fee of that parcel. On this farm there is a commodious dwelling house in good repair and necessary farm buildings. Prior to his marriage his mother and himself constituted the family. Complainant when she married defendant expected to make her home where her husband was then living,, and expected that defendant’s mother, who is a woman seventy-five years of age, would live with them as a member of the family and that she and the mother would each do part of the house work. Hot long after the wife became a member of the household domestic differences arose, chiefly growing out of vexing and vexatious disagreements between the wife and mother. - The husband seems' in a measure to have supported the mother’s position in these disputes and disagreements, and we are not able to say from the evidence that he was without some justification in so doing. It would be of little profit to further pursue the disagreeable details of these domestic quarrels, which ultimately resulted in the wife’s leaving her husband’s home and returning to her mother’s house, from which she came on her marriage. In all these quarrels she seems, however, to have sufficiently maintained her side of the controversy, and justified her own diagnosis of her temperament that she was “ nervous and easily fretted.” 1

It is clear that, the defendant provided adequately for his wife up to the time of her leaving his home, and that his refusal, or neglect, to provide for her'thereafter was because she had left him. Apparently the sole occasion of her leaving was his definite refusal to provide for their use a home, or living rooms, from which his mother should be excluded. We conclude that there was not at the time she went away sufficient reason, or adequate excuse for the course she took.'1

We think that she has also failed to show another and equally necessary, element of the offense of which defendant 'has been adjudged’ guilty. This is that she was likely by reason of his failure to' support her to become a charge upon the public. The offense charged is one riot solely against the. wife, though the proceeding may indirectly result in her benefit, but primarily it is for the protection of the public against an expense which is liable to be occasioned to it by reason of the failure of the husband to support the wife. (People v. Crouse, 86 App. Div. 352, 355; People ex rel. Douglass v. Naehr, 30 Hun, 461; People ex rel. Feeney v. Dershem, 78 App. Div. 626.) We. fail to find any evidence whatever that the wife was liable to become a public charge. Her testimony shows that she had money in the bank and that, after leaving her husband, she had been earning money in the exercise of her trade or avocation as a dressmaker.

We conclude by adopting as an expression of our views as to the proper disposition of this case the apt statement of Houghton, J., in People ex rel. Demos v. Demos (115 App. Div. 410,412) : “ The statute was not enacted for the settlement of matrimonial differences, and Magistrates’ Courts were not organized to adjust domestic quarrels. If the defendant was guilty of such conduct towards the complainant as justified her in ref using, to live with him the courts were open to her to bring an action for separation and thereby obtain provision for her support. A Magistrate’s Court is not a divorce court, and complaint of abandonment in that court is not a proper method for obtaining a decree of separation from bed and board.

“ To constitute the offense a legal abandonment must be shown, as well as the fact that the wife or child is likely to become a-public charge, and in both respects the proof against defendant was insufficient.”

The judgment of the County Court and Justice Court should be reversed and proceedings dismissed.

All concurred, except Spring and Kruse, JJ., who dissented in a memorandum by Kruse, J.