Opinion
December, 1921.
Order of the County Court of Kings county and order and judgment of the Domestic Relations Court, Borough of Brooklyn, reversed, and defendant discharged, for the the reason that the decision of the Domestic Relations Court adjudging defendant a disorderly person and guilty of violation of the Inferior Criminal Courts Act, section 74, subdivisions "a" and "c," was contrary to the evidence. There was no evidence before the magistrate that defendant abandoned his wife or child, or that he neglected to provide for them or that they were in danger of becoming a burden upon the public. On the contrary, the evidence was that the wife left the defendant, taking her child with her and breaking up the home. There is no justification in the record before us for such action on the part of the complainant wife save her statement, "I felt that I was committing suicide by staying with him." But there is nothing to justify her apprehension. She gives no reason; there is no word of evidence of misconduct, abuse, cruelty or lack of support. To adjudge the defendant husband guilty of crime upon the evidence in this record appears to be contrary to law. ( People v. Pettit, 74 N.Y. 320; Lutes v. Shelley, 40 Hun, 197; People v. Frederick, 78 id. 36; People ex rel. Boettcher v. Boettcher, 141 App. Div. 531; People ex rel. Demos v. Demos, 115 id. 410.) While "the law as it now reads is in many respects radically different from the prior laws and it confers wide discretion upon the Domestic Relations Court" ( People v. Houtman, 197 App. Div. 84), it has not been changed so as to justify a conviction of this defendant on the evidence before us. Blackmar, P.J., Rich, Kelly, Jaycox and Manning, JJ., concur.