This proceeding is brought under section 74 of the Inferior Criminal Courts Act and the court adjudged the appellant a disorderly person in that he neglected to provide for his wife and child according to his means.
The evidence supports the charge as made and further establishes the fact that the wife, the complaining witness, is unable to support herself and is in danger of becoming a public charge; the evidence further shows that the appellant is able to support his wife. These findings of the magistrate will not be disturbed by the appellate court.
Therefore, there remains for us only two points to decide:
(1) Did the action of the magistrate on February 3,1928, vacating an order previously made and based upon the conviction of the appellant as a disorderly person, bar this proceeding?
(2) Does the fact that the wife had committed adultery free the appellant from his obligation to support her, and thereby placing her in danger of becoming a public charge, when it is also established that the appellant himself has also committed adultery?
Previous to bringing this charge the appellant had been adjudged a disorderly person, for the record shows that on February 3,1928, a magistrate vacated an order of support previously made against this appellant and in favor of the present complaining witness on the ground that she had committed adultery. The appellant claims that this action of the magistrate is a bar to the bringing of this proceeding as it amounts to res adjudícala. With this contention we cannot agree, for the action of the magistrate amounted to no more than the vacating of an order and not the setting aside of an adjudication.
As long as the marriage relationship exists between the parties, the Family Court has jurisdiction over them.
The record shows that the parties are still married. It is true that proceedings in the Supreme Court were instituted by both parties for a decree of dissolution of the marriage and for a separation. These actions were tried and relief denied due to the adultery of both. In the recent case of People v. Schenkel (258 N. Y. 224), Lehman, J., speaking for the Court of Appeals says: “ Whether the obligation of maintenance continues after the wife has been guilty of adultery is not now before us.. (See Jones v. Guardians, etc., supra [(1920) 3 K. B. 381].) Perhaps even there the ancient rule has been changed, and only dissolution of the marriage relation can destroy its incidents. (Cf. Real Prop. Law [Cons. Laws, ch. 50], § 196; Dec. Est. Law [Cons. Laws, ch. 13], § 87.) That we do not decide.”
In this case, where the appellant has also committed adultery, we feel that the husband cannot take advantage of his own fault *29to free himself from the obligation to support bis wife, especially when that obligation will then fall upon the taxpayer, by reason of the fact that the wife will become a public charge.
Kebnochan, P. J., and Salomon, J., concur.