Opinion
08-04-1900
STREITWOLF v. STREITWOLF.
A. H. Strong, for complainant. W. P. Voorhees and Robert Adrain, for defendant.
Suit by Elizabeth Streitwolf against August Streitwolf for divorce. Decree in favor of complainant.
A. H. Strong, for complainant. W. P. Voorhees and Robert Adrain, for defendant.
PITNEY, V. C. The complainant files her bill for divorce from bed and board, and for permanent alimony, based upon a charge of extreme cruelty practiced upon her by the defendant The bill specifies particular acts of cruelty, including personal violence. In general, the defendant denies the violence, charges tantalizing, aggravating, and provoking conduct on the part of the complainant, and admits that on two or three occasions, when so provoked, he had struck her. He sets up as a cause of her misconduct that she had became addicted to the inordinate use of intoxicating liquors.
Before entering upon the merits of the case, I deem it worth while to give the history of the litigation: At and prior to the 3d day of August 1896, the parties were living together at the house of the husband, in the city of New Brunswick. On the evening of that day an altercation took place between them, accompanied with physical violence on each side. The parties were separated by mutual friends, and the complainant immediately left the house of her husband; he at the time telling her that she should never come back. The bill in this case was filed on the 17th of August, 1896,—a fortnight later. The answer was not filed until the 19th of August 1897. On the 18th of August, immediately following her bill, the complainant filed a petition for alimony pendente lite, with affidavits. The defendant answered that petition, with accompanying affidavits, which were verified in September, 1896, but which were tiled at the time of the argument—November 2, 1896. On that day an order for a counsel fee and alimony pendente lite was made by the chancellor. About the 1st of January, 1897, the defendant left the country, visited the Mediterranean, and returned about the 1st of April. Negotiations were opened between the parties for a settlement of their difficulties, which bore no fruit; and shortly after the 1st of May, 1897, the defendant left New York for the far West. On the 17th of August, 1897, the complainant was served with a copy of a complaint, and process thereon, purporting to be filed in the district court of the Sixth judicial district of the state of North Dakota, in a suit brought by the defendant against the complainant for divorce on three grounds: First. Cruelty practiced by complainant herein upon the defendant. Second. For adulterycommitted by her in the year 1880 with one J. S. C, of the city of New Brunswick; also, adultery committed by her in the month of August, 1895, with one W. F. S., of the city of New Brunswick; and other acts of adultery not specified. Third. That the complainant was addicted to drinking intoxicating liquors to excess. On the 7th of September, 1897, the complainant presented a petition in this cause to the chancellor, and obtained from him an injunction against the defendant, forbidding him to proceed with said suit in North Dakota. Notwithstanding that injunction the defendant proceeded with his suit, and on the 7th of October, 1897, the Dakota court granted a decree of absolute divorce, based upon findings of fact (1) that the complainant herein had been guilty of cruel and inhuman conduct towards the defendant; and (2) that she had been in the habit of using intoxicating liquors to excess, and thereby disqualified herself from attending to her duties as a wife. Complainant herein filed a supplemental bill on January 11, 1898, praying relief against the decree in Dakota on the ground that that court had no jurisdiction of her person or of the cause of action. The answer to that bill was filed on the 6th of April, 1898. In the meantime, however, after obtaining the decree in Dakota, the defendant had again left the country, and was traveling in Europe. Being advised of the supplemental bill, he returned. The cause on the original and supplemental bills, being at issue, was referred to a vice chancellor on June 14, 1898, and the cause arising pn the supplement brought to hearing on November 16, 1898, and a decree made on the 18th of November, 1898, declaring the Dakota decree to be void as against the complainant. See 41 Atl. 876. An appeal was taken from that decree January 7, 1899, and it was affirmed by the court of errors and appeals June 19, 1899, as reported in 43 Atl. 683. In the meantime the cause on the original bill was brought to hearing on the 19th of April, 1899, and continued from time to time until March 29, 1900, occupying seven days in its production.
The solution of the questions presented by the pleadings requires a consideration of the whole of the married life of these people. The complainant is of German origin, but born in this country, and has lived from her infancy in the city of New Brunswick, where her father and mother and several of her brothers and sisters have lived. Her father is a barber, and the family are industrious and respectable, of moderate education and culture. The defendant is German born. The parties were married In June, 1877. The business of the husband for the first seven or eight years of their married life was that of keeping a drinking saloon, with restaurant attached, in New Brunswick. To this business he and his wife gave their personal attention; the wife taking part mainly and naturally in the eating department, but assisting, also, in the dispensation of liquors. The business was prosperous, and in about the year 1885 the defendant gave it up and commenced the wholesale liquor business. He occupied living apartments over his store in New Brunswick. This business was also prosperous. The defendant accumulated money. His wife also assisted in, and gave personal attention to, the business. In 1891 he purchased a lot on Burnett street in New Brunswick, and erected a commodious and convenient store for his business, with two floors of living apartments above,—the first floor containing dining room, kitchen, and appurtenances, above which were four or five sleeping apartments, with bath room and water-closet. One child—August Streitwolf, Jr.—was born to them in 1879. They were an affectionate and loving couple. The wife was a most devoted and loving wife. She was, in fact, and, in my judgment, continued to be to the last, in love with her husband. The evidence to this effect is all uncontradicted. They lived happily until about the year 1892 or 1893. A servant girl who lived in the family in 1891 and 1892 testifies to the effect that during the time she lived there she knew of no trouble between the parties. In 1893 the Unhappiness commenced, and continued until the separation in August, 1896. Each party charges the other with being responsible for this. The wife swears that the husband developed a desire for the society of other women; that she discovered on two or more occasions that he was afflicted with venereal disease. She charged him with going with other women, and he admitted it, and gave the details,—specified one woman in particular with whom he was wont to enjoy himself. This evidence, positively sworn to by the wife, and brought out by questions put by counsel of defendant, was not denied by the husband, and I must assume it as an established fact in the case. The wife swears that with that habit of going with other women came a studied neglect, of her, and a carping, fault-finding habit, being dissatisfied with everything that she did, including her cooking; that he became morose and ugly in disposition, and on several occasions struck her; if the food did not suit him, would throw plates at her. The husband admits that on several occasions she, by her tantalizing manner, provoked him to acts of violence. That he did frequently commit acts of personal violence upon her is proved by the clear weight of the evidence, both direct and circumstantial. His father-in-law and brother-in-law swear that he admitted it to them, and promised not to do so any more. Several witnesses swear to having, seen marks of violence on her face and person, which, to persons she met casually at the time, she attributed to causes other than her husband. But she swears that she did this in order to shield him from censure. The defendant swears that his wife became addicted to intoxicating drinks to excess, and about 1893 became so offensive in her person that he could not endure the occupation of the same bed with her,and refused so to do. The evidence tends to show quite clearly that she on several occasions sought his bed in the night, and that he repulsed her. This evidence, in my view, is corroborative of the theory that she was in love with him, and desired the comfort and caresses which a wife is entitled to from her husband; and it also supports her allegation that her husband's affections were weaned away from her and given to other women. The husband asserts, and brings abundant evidence to prove, that his wife did become addicted to the use of intoxicants. Much contradictory evidence on this subject was given. Witnesses for the wife, whose sincerity can hardly be doubted, swore that they saw her on occasions when it was testified on the other side that she was drunk, and that they saw no signs of intoxication upon her. Much of the evidence on the subject of intoxication, as well as on other points, is difficult to reconcile. But I am satisfied that the wife did become addicted during the last three years of her cohabitation with her husband to the use of intoxicants to a degree which was injurious to her health, and in part supports the theory of the husband. In fact, he swears, and I think the evidence warrants the conclusion, that she was at times quite beside herself, and not responsible for her acts. But her attending physician, who was relied upon by the defendant to establish her excessive use of intoxicants, is quite positive that her condition never approached that of delirium tremens or mania a potu. During the course of the year 1895 she had one or two attacks of dropsy, and other symptoms, which her family physician attributed to the use of liquors. I think his theory, in part, at least was right; but I think the extent of her drinking was not so great, or her desire for it so deep-seated, as either the physician thought or her husband and his witnesses testified. In the last days of December, 1895, the husband determined to send his wife away to a retreat for the cure of her desire for drink, called a council of her family, and stated to them distinctly that he would not live with her any longer unless she did abstain from the use of intoxicants. In this connection it must be stated that she had free access to liquors in the defendant's store, and no means were taken by him to prevent it. He used liquors himself on the table, and in fact afforded her ample opportunity to indulge. The result of the family council was that the husband and the complainant's brother August Landmesser, an alderman of New Brunswick, took the complainant to a retreat at Westport, Conn. There was an Insane asylum connected with it, but there was also a voluntary department, in a separate building, where persons could stay and be treated. She was placed by her husband in the voluntary department, as a person afflicted with the rum disease. After she had been there a day or two the defendant wrote his wife a letter dated January 4, 1896, as follows: "New Brunswick, N. J., Jan. 4, 1896. Lizzie: A few minutes before your telegram came here I mailed Check to Dr Ruland for 30 Doll for next weeks board. I am sorrow to hear you are sick but I cannot come to Westport and further more not intend to. After this next Week I propose that you must take care either yourself or get your relatives to do so. As far as I am concerned I dont intend to make another move in your behalf. I wrote to you from Germany (last year allready to Atlantic City) plain and candit what I exspected you to do in the future and if you failed therein what the result would be. Well the time has come; You have had more than another chance and You have voluntarily thrown it away, and we are to part now, at least for the present, and You must certainly present strong proof of evidence of changing for the better before you ever get back to my house again. The doors are barred against You as much as any stranger, and none of my help will except your Order or anything else any more than from any stranger they have my instruction to this effect and I will take care that there are carried out to the point. Now as far as Your person concerned I propose to do as follows: First. You to receuve the sum of ten Dollars per Week on each Monday, payable at the Peoples National Bank on proper receipt. Second. You to receive all Your Wardrobe, linen, Brick a brack on Your Order to be delivered with all possible care to such place or places as You may designate. Third. All your Jewelry & ect. to be delivered to You with the exception of one Diamond pin, this I withold for the reason that you have repeatedly charged me from stealing it from you, and for this reason you shall never have the satisfaction of waring it again. All these points will be carried out to the point providet You acept these terms quietly and submissive without any public notoriety or without causing any anoyance either to me or any of my employees at my place of buissnes, if such should take place I be obliged to invoke the Law and then I would stop every thing; leaving the matter entirely to the Court to settle. However I hope you have some common sence left or at least some of your relation have some, to advise you that the quiestest way out of this properly is the best one for all concerned. In parting I assure you I have no bitterness against you any more I feel sorrow, but I have relented time and time again and forgot and forgiven and I feel I am going all to pieces this continued annoyance and trouble and after trying every remedy I see only one left and if it is a herois masure it is properly for the best of both of us. This is final: Farewell. A. Streitwolf.
"P. S. The Boy will go back Monday evening and stay up there for the present he can see or communicate with you at his own sweet will after the ending of this term I shall make other arrangements for him."
Again, on the 8th of January, he wrote her as follows:
"New Brunswick, N. J. Jan 8, 1896. Mrs. Streitwolf: Your letter received. You shall have your pin along with all the rest of your things to satisfy you. You only said in Hoeys the other morning I stole your pin. The girl is going away tomorrow and the House he closed up I going to Board. All the rest of your letter is of no consequence enough to give any reply to it. I paid your Doctor Donnohue bill to day of $119.50 Doll, and quared all other Bill you contracted at Butchers & Grocers, and there will be no more of them. Yours truly A. Streitwolf."
On the 10th of January he wrote to her father as follows:
"New Brunswick, N. J., Jan. 10, 1896. Mr. Chas. Landmesser, City—Dear Sir: I have to recognise the fact that I cannot and will not take any personal responsibility or care of Mrs. Lizzie Streitwolf, your daughter, in the future, until such time she can prove to me that she has changed in her personal habits and desires. I am, and have been for a long time past, afraid that some calamity would happen sometime, which would cause endless pain and trouble to all her friends. To avoid such possibilities, and recognising the fact that you have a large family, with a number of young ladies, all her sisters, naturally the most desirable companions for her; I think and insist, then, that you ought to care for her, and by dint of good usage, and care, restore her, if possible, back to herself and her family. Of course, I do not mean to say that I will not care for her financially. I have made arrangements with the People's National Bank, of this city, to pay Mrs. Streitwolf Ten Dollars per week, on her signature; or should she prefer, I would as soon make out a check for her weekly or monthly. I hope and trust you will look into this matter with the sense of coolness it requires. I wish to avoid public talk, at almost any cost; but, if it must be a metter of publicity, well and good. I am not afraid nor unprepared to light, and if so, to a finish, as much as I fear the public tongue. Yours, truly, August Streitwolf."
On the 9th of January, 1896, Mrs. Streitwolf left the retreat at Westport, and went to the house of her sister Mrs. Ficken, in Jersey City, and remained there until the latter part of March, when, by her husband's consent, she returned to his house in New Brunswick. While at Jersey City he wrote her as follows:
"New Brunswick, N. J., Jan. 17, 1896. Mrs. Streitwolf: Your letter of yesterday to hand. You can get Strong brothers or they devil if you like! I send you to day your Jewerly and I might as well tell you now as any time that if anything is still in this house you think you have any claim to it state so at once, and then hold your peace. Hereafter you get your allowance and no more, this house is closed for you forever! and you spare me and yourself annoyance if you will cease writing in the future. A. Streitwolf." And a week later he wrote her again as follows:
"New Brunswick, N. J., Jan. 24, 1896. Mrs. Lizzie Streitwolf, Jersey City, N. J.—Madam: Having the house cleaned up this last Week I found a lot of things such as lace, silks, paints & ect. and I forward it all to you by Ex. to day. There now remains one easel, two small tables and a large bowl in Parlor, these later presents I believe of Your brother, these things are to bulky nor have I the time to pack them for shippment to You, however these will be delivered if desired, to any one on Your Ordre. I also send you some Photos out of the Albums reserving you the right however to ask for any other picktures in said Albums you may desire. Now if there is anything else you desire or claim you please will make such demand knowing to me within one Week from date, try to confine yourself however to such Articles as have not been purchased, as of these I have forwarded to you all I intendet to. I also refuse you the Pocketbook and Umbrella I recently brought from Europe, because you have more than a sufficient number of these Articles for present use, and most likely and natuarlly be used for some one elses benefit The Girl has informed me that I have send a black silk cape belonging to her and hung in same closet along with your clothes. You please return the same without delay, and ought to have been done before now, if you had looked over your goods. Yours very truly, A. Streitwolf."
The defendant swears that he refused to allow her to come back, except upon terms and conditions, which he states in his evidence were the following: "'First, that, you have to come back to your household affairs and look after it; secondly, you don't go down and run any bills in the different stores you trade with; and, third, and mainly, you must abstain from drinking any liquor, in any shape or form whatever. Fourth and last, that your conduct and your action—your behavior towards me—must be of a different style, and be more kind and less abusive than formerly. In other words, that you are to be a kind and agreeable woman, instead of abusive and scolding as you have been heretofore. And on this I will take you back on probation. You leave your things here, taking nothing with you except your necessary clothes, because I am afraid you will not live up to it I did state before I made any condition that she must make up her mind whether to live with me or with her people. She said I had done right in ordering her sisters away from the house, or keeping them away from the house; that they had been too fresh, entirely, and had said things that they had no right to say; and she said I done perfectly right in doing as I did." After she returned to her husband's house, no trouble arose for several days, and then the old state of things revived. She began to drink, and he began to treat her in thesame manner as before, with severity and harshness, and on several occasions with violence, until the evening of the 3d of August, when they separated, as before stated. The circumstances were as follows: Previous to that, to wit, on the last of July or the first of August, W. P. S., with whom the defendant, in his Dakota suit, charged the complainant with having committed adultery, and who had been in the employ of the defendant for several years in his store in New Brunswick, left him suddenly; and on the evening of the 3d of August a Mr. Viereck, who was a tenant and customer of the defendant, called at his place of business. The subject of Mr. S.'s leaving came up for discussion, and it appears that prior to that Mr. Viereck had, at an interview at defendant's store, said to the defendant something to the effect that when, on a previous occasion, he discharged another employé, he should also have discharged Mr. S. Mr. S. had called on Viereck and complained of him on that account, and now Mr. Viereck mentioned the matter to defendant. Naturally, the question arose as to how Mr. S. had heard what Viereck had said. The defendant thought that Mr. Viereck had been overheard by somebody who had repeated his remark to Mr. S., and it was suggested that the complainant was such communicant. The complainant, who had been out marketing, came into the store, and overheard the latter part of the conversation between her husband and Mr. Viereck, and immediately said it was a lie. Angry words passed between them, and finally the defendant said to complainant that she could not deny but that she had on a certain occasion been in the front parlor upstairs with Mr. S. early in the morning, while defendant was in bed asleep, and, in substance, as understood by Mr. Viereck, charged her then and there with adultery with Mr. S. This intensified the situation. The complainant denied the charge, and charged her husband with lying. He struck her in the face with his straw hat and with a newspaper. She struck him, first with a fish which she had just been buying for breakfast, and then with a pocketbook which she held in her hand, and whose steel clasp scratched his face and drew blood. The parties were separated. The complainant left the house, and defendant shouted after her, and sent word to her by his son that she could not come back again. She went to her father's house. Three days afterwards the husband said to the son, who was working for him in his store, that he must decide whether he would go with his mother or stay with him. The son decided to go with the mother, and left. The husband then sent word to the wife to take away her clothing, but, before delivering it to her, mutilated each piece of it thoroughly with a knife or scissors, or other sharp instrument, so that a large number of costly female garments of all kinds were utterly destroyed, and in that condition sent to the wife. I stop here to say, before inquiring closer into the merits, that it seems to me that, if the complainant's bill had been framed under the twentieth section of the statute (2 Gen. St. p. 1270), little or no defense could have been made to it. But the question remains as to which party is, in the view of a chancellor, blamable for the situation as it stood on the 3d of August, 1896. The evidence is overwhelming that the defendant at that time, and for some time previously, desired to be rid of his wife. His own testimony on the stand, and the letters which he wrote her, show this; and his action in attempting to procure a divorce from her, though occurring after bill filed, throws a light upon the state of his mind at the time in question.
Now, first, as to the cause of the complainant's drinking, and the extent of it. I think the extent of it and the effect of it have been overstated by the witnesses of the defendant, —some of them highly respectable and intelligent. She had never acquired what is known as the "rum disease," or that appetite for spirits which cannot be overcome except by actual restraint. The physician in whose charge she was at Westport was sworn, but failed to show that during the 10 days that she was with him she showed any desire at all for drink, or that he prescribed it for her. She came back to her sister's, in Jersey City; who, with her husband, are quite respectable, and entirely reliable as witnesses. She manifested no desire for drink there. She had none. They kept none in the house. She still had the dropsy. The doctor who was called in found her kidneys in a condition to account for her dropsy, but there was no organic disease or lesion, such as results from excessive and long-continued use of spirits. He attributed their condition to causes other than that of intoxicants, viz. nervousness and mental worry. He treated her in the ordinary way, and she entirely recovered, and his decided opinion is that her condition was not due to the excessive use of intoxicants. Again, some time after leaving her husband, in August, 1896, she took up her abode with her sister and brother-in-law in Jersey City, and has lived there ever since. The testimony is clear and convincing that she has never indulged in any alcoholic stimulant or any substitute, or manifested any desire therefor. Her appearance on the stand was that of a perfectly temperate person; and those witnesses who testified that they had previously seen her showing the signs of continued intoxication while living with her husband, and who saw her on the stand, declared that she was a different woman. Now, I think it is quite in accordance with common observation and experience that persons who have acquired a strong and deep-seated taste for intoxicants do not drop their use so easily as complainant seems to have done. That she did sincerely grieve for the loss of her husband's affection, and on account of his treatment of her, is established to my entire satisfaction. Her sister swears that whilestopping with her in January and February, 1890, she was at all times sad and melancholy, and frequently in tears. Again, she had been from the time of her marriage up to the year 1892-93—a period of 14 years— constantly subjected to the temptation to drink. There is not a particle of evidence that before the date last mentioned she had ever overindulged to any extent, and, I repeat, the parties had lived as affectionate and loving husband and wife. The affection of the wife for the husband was a matter of remark with their acquaintances. Again, the fact that she was drinking too much was first called to the attention of the defendant, by the family physician in the year 1893. He was called in to see the complainant, who was ill, and informed her husband that she had been drinking too much. The husband swears that he had never previously suspected it. He knew, as we have seen, that she was subjected daily to the temptation to drink, and had been so subjected from the time of their marriage, not only in connection with the selling of beer and spirits to customers, but also by the placing of beer and wine constantly upon the family table, and she was constantly partaking of it in a moderate degree. This is testified to positively by the husband, with the additional statement that the doctor informed him that the cause of her excessive drinking was that she suffered with the usual female diseases known as "weakly complaints," and that it was a common thing for women so afflicted to indulge either in narcotic or alcoholic stimulants, and that she was not at all to blame for it; that at that time—1893—her drinking had not caused any disease, but had been caused by disease. It was the reflect, and not the cause. It will thus be seen, from the defendant's own account, that, the desire to drink, so far as it existed, was one for which the complainant was hardly responsible. It was not her fault, but, rather, that of the husband, that she was subjected to the temptation; and it was not her fault, but, rather, that of disease, that she acquired the desire to drink to excess. Now, just at that time, namely, in 1893, the husband swears that she was afflicted with hemorrhage of both the nose and the bowels; that her breath became offensive, and her whole person became so disgusting to him that, he refused to cohabit with her, and as is plainly inferable from all the evidence, refused to have sexual inter, course with her. Then the evidence satisfies me that he was of high, quick, and uncontrollable temper, and when irritated quite violent, not only in his language, but in his action. Now, it is at just about this time— 1893—that we have intervening the established fact that the husband was consorting with other women, and on several occasions had acquired a venereal disease; that he did not deny it to his wife, but boasted of it. And then we have the further established fact that he desired to be rid of her, and refused to live with her except upon terms of her absolute reformation in the matter of drinking; and yet, when she came home from her sister's, in March, 1896, he took no measures to keep her from temptation, but required her, as a matter of pure exercise of will, to refrain. At the same time he refused her the love, affection, and offices of a husband. Now, taking the whole case together, I think it is fair to infer that the loss of his affection, his positive neglect of her, and his attention to other women, was a very efficient, if not the sole, cause of the yielding of the complainant to the temptation to which she was exposed, and that under the circumstances the fact that she did drink too much, and became irritating and unpleasant in her manner, was no excuse for the husband's conduct and treatment of her. It was, in my judgment, his duty to have provided her a home where she would receive and enjoy his loving attention, and not be subjected to the temptation to drink. Now, to meet this very suggestion, the defendant swore that he offered to do that; that he offered to furnish her a home separate from his business. She admits on the stand that he did so offer, but testifies that it was upon the condition that he was not to live with her; that she was to live there alone, separate from him. In other words, he offered her a separate establishment, without his society or love. This, in my judgment, she was not bound to accept. If in March, 1896, when he found that she had substantially recovered from the effects of her previous excessive drinking, instead of laying down the hard rules which he swears he did, upon which he would permit her to return to his house, he had said to her, "I will furnish you a home separate from my business, and will live with you as your husband, and love and cherish you, and will abstain from indulgence with other women, and give you my whole heart and strength," and she had refused that, a different case would have been presented. But it was quite manifest that after the year 1893 he never did act the part of a husband towards her, and never intended so to do,—had lost all love for her, and was maneuvering, so to speak, to get rid of her. The result is that I am unable to find in the unfortunate taste which complainant had acquired for intoxicants, and her moderately excessive indulgence therein, any excuse for the harsh treatment which she experienced from her husband. On the contrary, I think that, under the peculiar circumstances of this case, it cast upon him the duty to treat her with unusual kindness and consideration. Then I think that the unwarranted charge of adultery with Mr. S., made in the presence of their son and servant and Mr. Viereck on the evening of the 3d of August, was dastardly in the extreme, and is of itself an act of cruelty. The vindictive and mischievous disposition of the man is manifested by his wanton and deliberate destruction of his wife's wardrobe. Upon the whole case, I come to the conclusion that the defendant was from the year 1893 guilty of acontinual course of conduct towards his wife which amounts to extreme cruelty. I think that her health and life would have been endangered by a continuance of it. The danger would have arisen not only from mental worry and strain over his neglect of her, but from a liability to acts of physical violence, due to his quick and ungovernable temper. Of course, her return to him in March of 1896 was a conditional condonation of his previous cruelty. But, as we have seen, there was no change in his treatment of her. A close examination of the evidence will show that it was more rigorous, if anything, than before, and was attended with the usual disposition to physical violence, and occasionally actual violence. I will therefore advise a decree in favor of the complainant.
The remaining question is as to the amount of alimony. The defendant is possessed of considerable real and personal property. A low estimate put upon it in his affidavit in answer to the application for alimony pendente lite made his total worth $33,000. He owns valuable real estate in New Brunswick, —all subject, however, to mortgage,—and he has considerable personal property in the shape of cash assets. He swears that pending the suit he lost a matter of five or six thousand dollars in stock speculations in Wall street. And then he has been to considerable expense in his visit to Dakota, and the cost of the divorce proceedings there, and the litigation in this case, and two trips which he has made to Europe since the suit was brought. But he still has considerable personal property. His net income from his real estate is about $2,000, and there should still be an income from his personal property, added to that, of two or three hundred dollars a year. They have but one child, who is now supporting himself. The husband is not in robust health, but still quite able to attend to business and earn a living. The wife is somewhat shattered in health, but also able to do something for a living. In that respect they stand on an equal footing. She has been, undoubtedly, an industrious and energetic woman, and has contributed materially by her personal efforts and labors to the accumulation of the defendant's fortune, particularly in the first years of their married life. The evidence is full in this respect. Not only while he was in the retail business, but after he entered into the wholesale business, she gave personal attention to the business of the sales department. For these reasons she is entitled to a liberal share of his income. But at the same time it is best that the allowance should be fixed at an amount which the husband can safely pay, and can without difficulty secure to her. Taking all things into consideration, I think that $16 a week will be a fair allowance, and one not overburdensome upon the defendant. This must, of course, be permanently secured to her. The defendant must pay the costs and a counsel fee, to be fixed after hearing counsel.