Opinion
March 2, 1906.
William Victor Goldberg, for the appellant.
Rufus O. Catlin [ William Wills with him on the brief], for the respondent.
This is an appeal from a judgment of limited divorce based upon abandonment. First, it is insisted that there was failure of proof in that it did not appear that the going away was without the assent of the plaintiff. Consent is inconsistent with the idea of abandonment or desertion. ( Uhlmann v. Uhlmann, 17 Abb. N.C. 236, 260; De Meli v. De Meli, 67 How. Pr. 20; Ford v. Ford, 143 Mass. 577.) The plaintiff testifies that the defendant left their common home on June 30, 1904, and that he has never returned to her. On cross-examination she testifies: "I do not want him to come back, on account of the names he called me. I was satisfied that he left the house; I had peace after he had gone. I asked if he was going away and he said yes; I asked him for a support and he gave me a very sulky answer, not fit to express. He did not tell me that when I quit going around with one Meehan that he would be willing to live with me. It was about the 3d of June that I left his bed. After the 3d I was not asked to come back. I would not go back. After the 3d of June, if he stayed in the house I would stay there too. Q. You would not stay with him at all? A. No, I would not, for the names he called me. Q. You would not stay with him now? A. No, I don't want him." Testimony as to what the witness would or would not do in an event is not evidence as to whether she did or did not consent to his abandonment. ( Ford v. Ford, supra; Monteath v. Monteath, 51 Ill. App. 126.) In Ford's case the court, passing upon a similar question, say, per HOLMES, J.: "Conduct which in itself is proper cannot be made improper by inquiring what he would have done in an event which did not happen." Of course her mental state would naturally aid the conclusion that she did show consent by words or acts, but such mental state is no substitute for acts or words. ( Ford v. Ford, supra.) When we analyze the testimony of the plaintiff it appears that she but asked the defendant if he was going away, and when he said yes, she asked him for support. I think that this is not sufficient to indicate that the plaintiff consented to desertion or abandonment. Of course the court was not bound to credit the statement of the defendant that he left "by mutual agreement." Moreover, his explanation of the "mutual agreement" seems to be that he expressed his intention to leave, and that his wife said nothing. Second, the defendant is charged with $10 a week, and the plaintiff is allowed the use of the dwelling house. The wife testifies that her husband has an income of $120 a month, that he has received rents from the lower part of the house of $15 a month, and that he owns lots and a house in Flatbush which return a rental of $20 a month. The husband, aged sixty-one, testifies that he receives $30 a week wages; that he bought the house which his wife occupies (they are tenants by the entirety) with his own money; that there is a mortgage on it, and that the rental of the lower part is not sufficient to meet the interest on the mortgage and the taxes, which he pays; that the property in Flatbush is mortgaged for $1,000, and that the rent pays interest and taxes but not the repairs. The wife is fifty-two years of age, with but one child dependent on her, a lad of twenty years, who earns $6 a week. She is the life tenant of certain property which pays her $41 a month. I think under the circumstances that in addition to affording the plaintiff a home, a charge upon his weekly wages of $7.50 is sufficient, and, therefore, I recommend that the judgment be thus modified, and as modified be affirmed, without costs of this appeal.
HIRSCHBERG, P.J., WOODWARD, RICH and MILLER, JJ., concurred.
Judgment modified in accordance with the opinion of JENKS, J., and as modified affirmed, without costs of this appeal.