Summary
In People ex rel. Ford v. Ford (124 Misc. 19) the court assumed that a pending matrimonial action was not a bar, but it determined the appeal on another issue.
Summary of this case from People v. AulbachOpinion
November, 1924.
Morris I. Lipsitz, for the appellant.
Guy B. Moore, District Attorney [ William H. Hartsberg, Assistant District Attorney, of counsel], for the respondent.
Bernard D. Welt, Amicus Curiae.
The appellant has been convicted in the City Court of Buffalo of being a disorderly person under section 899, subdivision 1, of the Code of Criminal Procedure, which reads as follows: "The following are disorderly persons: 1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means."
The only witness sworn at the trial was Cecelia Ford, the complainant, and her testimony and a stipulation constitute the entire evidence in the case, and it establishes the following facts: 1. That the complainant and appellant were married November 18, 1918, and lived together until January 8, 1923, when he left the complainant, but continued to support her and saw her occasionally until September 10, 1923. 2. That the complainant began an action for separation in the Supreme Court, Erie county, about January 31, 1924, which action is still pending, and that she never applied for alimony or counsel fees therein. 3. That in 1923 (probably the latter part) at a conference at her attorney's office, she refused to live again with appellant, but later on she changed her mind and asked him to live with her. At the trial she was asked this question: "Are you, of your own free will, willing to go back to live with him?" and she refused to answer it. 4. That complainant is now living with her mother and earning about six dollars per week in a hairdressing parlor. 5. That appellant is a pharmacist who at one time owned his own store, but there is nothing in the record to show what his income is at the present time.
At the opening of the trial counsel for the appellant moved to dismiss the case on the ground that there was a separation action pending in the Supreme Court. This motion was denied. The appellant was not sworn, and at the close of the complainant's case his counsel renewed his motion, and also asked for a discharge of the appellant on the ground that there was no proof that the complainant was "in danger of becoming a burden upon the public." These motions were also denied, and the appellant asks that the judgment of conviction be reversed on two grounds: (1) That the City Court of Buffalo did not have jurisdiction because an action for separation was pending in the Supreme Court; and (2) that the evidence produced was not sufficient to prove that the complainant was in danger of becoming a public charge.
Upon the first ground the earlier cases support the appellant's contention. In People ex rel. Demos v. Demos ( 115 A.D. 410, 412) HOUGHTON, J., said: "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 refusing 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." (See, also, People v. De Wolf, 133 A.D. 879.) It would seem to be fair to require the respondent to seek relief in the forum of her own choice, but later cases hold that she also has a right to relief in a Magistrate's Court.
In Kingsbury v. Sternberg ( 178 A.D. 435) there is a careful review of the cases, and Mr. Justice LAUGHLIN holds that a woman who had an interlocutory judgment of divorce but who never entered a final judgment could seek summary relief in a Magistrate's Court. (See, also, People v. Meyer, 12 Misc. 613; People v. Berman, 197 N.Y.S. 502; People v. Houtman, 197 A.D. 84; People ex rel. Goetting v. Schnitzer, 71 N.Y.S. 320; People ex rel. Heinle v. Heinle, 115 Misc. 469.)
Upon the second ground there is ample authority to support the appellant. While the offense is not a crime within the meaning of the Penal Law, it is clearly of a criminal nature and must be proven. The statute is summary, highly penal, and should be strictly construed. ( People ex rel. Comrs. of Charities v. Cullen, 153 N.Y. 629, 635; People ex rel. Feeney v. Dershem, 78 A.D. 626; People v. Pettit, 74 N.Y. 320, 324; Goetting v. Normoyle, 191 id. 368.) To constitute the offense legal abandonment must be shown, as well as the fact that the wife or child is likely to become a public charge. ( People ex rel. Demos v. Demos, 115 A.D. 410, 413; People v. De Wolf, 133 id. 879; People v. Smith, 139 id. 361, 363; People v. Crouse, 86 id. 352; Goetting v. Normoyle, 191 N.Y. 368, 373.)
The evidence upon the question of abandonment is meager and unsatisfactory, and is insufficient to prove the charge. ( Williams v. Williams, 130 N.Y. 193.) It is impossible to determine whether or not the separation of the parties or the failure to support the complainant after September 10, 1923, was justified. At the trial she would not consent to live with her husband, and refused to give any adequate reason for her refusal. The law will not compel a husband to support a wife who does not give satisfactory reasons for the separation. ( People v. De Wolf, supra.)
There is no proof that the complainant may be "in danger of becoming a burden upon the public." The evidence is rather to the contrary. She is in good health, living with her mother, and earning six dollars per week on part time work. Other proper occupations for full time work are open to her. Neither can a conviction be sustained upon the theory that the appellant has neglected to provide for his wife according to his means, because there is no proof to show what his means are.
The complainant has a remedy by proceeding in her action for separation, where she will have a full opportunity to bring out all the facts. That is the proper practice. ( People ex rel. Demos v. Demos, supra.)
Because of the foregoing reasons the judgment of conviction must be reversed, and the defendant is discharged, and an order may be entered accordingly.