Upon the complaint of his wife the defendant has been adjudged a disorderly person as defined by section 74 of the Inferior Criminal Courts Act, in that he neglected to provide for his wife according to his means and that he has not contributed to her support since December 30, 1927.
The parties were married in Hoboken, N. J., December 20, 1920, and lived together for a period of about five years and separated. The cause of he separation does not appear in the record. Prior to her marriage to the defendant the complainant was divorced from a former husband by reason of her adultery.
On February 3, 1928, an order which was not offered in evidence but which apparently had been issued by the Magistrates’ Court adjudging the defendant to be a disorderly person, on the complaint of his wife, was vacated on the ground that the complainant’s conviction for prostitution terminated the defendant’s duty to support her. Whether it was an order adjudging the defendant a disordery person after trial or a consent order it is impossible to determine from the record.
Subsequently the defendant instituted an action for divorce in the Supreme Court on the ground of the adultery of the complainant. After a trial the court found both parties were guilty of adultery, and refused to grant the divorce. Thereafter the Supreme Court granted defendant a final judgment dismissing, on the merits, complainant’s counterclaim for separation and support on the ground of abandonment, non-support and cruelty. It was only after the complainant’s failure to obtain a separation in the Supreme Court that the proceedings under consideration came to trial.
The complaint does not allege nor is there any evidence of abandonment, or cruel or inhuman treatment. Neither is there any allegation in the complaint that the complainant was in danger of becoming a burden upon the public.
In order to support the conviction of the defendant it is not enough to establish that he has failed to support his wife, as alleged in the complaint, but the evidence must establish that there are reasonable grounds to believe that the complainant is hable to become a public charge.
The trial court evidently rendered its decision on the theory that the complainant was liable to be a burden on the public although the record is not entirely clear on this point. The only evidence that supports the conclusion reached by the court is found in *30the complainant’s testimony, which is conflicting, unsatisfactory, and evasive. She stated on direct examination that she paid eighteen or twenty dollars to her father for her maintenance, and it was only after persistent questioning by the court and her counsel that she said she was without means of support and that her father refused to aid her. She claimed to be ill and receiving hospital treatment but refused to state the nature of her illness but admitted that she was suffering with a blood disease and receiving treatment at the department of health and at Bellevue Hospital. It was the defendant who subpoenaed the hospital records which indicated that the complainant is not incapacitated.
The complaint in this action has been pending for over two years and the record does not disclose any change in the circumstances of the complainant since February 3, 1928, the date on which the prior order was vacated in the Magistrates’ Court. During all this time she has supported herself and did not become a burden on the public. She has been represented by counsel in the proceedings in the Supreme Court and Magistrates’ Court. These facts and circumstances negative the assumption that the complainant is hable to become a burden on the public.
In my opinion the matrimonial difficulties of the parties are not affected by a public interest and the judgment should be reversed, order vacated and complaint dismissed.