Opinion
October 23, 1908.
Alexander Sampson, for the appellant.
Theodore Connoly, for the respondent.
The defendant appeals from an order of the Court of General Sessions affirming an order of a city magistrate adjudging the defendant to be a disorderly person in having abandoned his wife, and ordering him to pay to the commissioner of public charities the sum of $7 a week for the support of his wife and to give a bond in the sum of $364, or stand committed to the city prison. The order was made under section 685 of the Greater New York charter (Laws of 1901, chap. 466), which provides that such an order may be made when a person actually abandons his wife or children in the city of New York without adequate support, or leaves them in danger of becoming a burden upon the public, or neglects to provide for them according to his means.
The alleged abandonment is said to have taken place in the year 1900, and the evidence is far from convincing that the separation which then took place amounted to an abandonment or to anything more than a separation by mutual consent. Assuming, however, that the abandonment was sufficiently shown, it was not shown that the wife is liable to become a charge upon the public, and it is admitted by the respondent that, to justify the order, this must be shown, as well as the fact of abandonment. For this failure of proof the order and judgment must be reversed.
PATTERSON, P.J., INGRAHAM and CLARKE, JJ., concurred; LAUGHLIN, J., dissented.
The evidence, I think, amply sustains the charge of abandonment and sufficiently shows that owing to complainant's ill-health and destitute condition she is liable to become dependent on the public for support and maintenance.
I, therefore, vote for affirmance.
Order and judgment reversed. Settle order on notice.