By the Court.
The plaintiff is the wife of the defendant, and the action is brought by her to obtain a judgment of separation from bed and board forever on account of alleged cruel and inhuman treatment, and of such conduct towards her on the part of her husband as rendered it unsafe and improper for her to cohabit with him. In addition to the facts alleged in the complaint as constituting this cause of action, it is also alleged that the plaintiff, in the year 1854, purchased a farm and premises in Queens county, and the furniture in the house therein with her own money, and that such farm and furniture are her separate property, and in the prayer for relief she aslcs that proper provisions may be made in the judgment for her having sole possession of such household furniture, that all proper provision be made for allowance, present alimony and costs, and that she may have such further and other relief as may be proper.
On the trial before the referee a witness, produced by the plaintiff, was asked whether he had seen any thing harsh in the defendant’s conduct towards his son Joseph, while his mother, the plaintiff was present. The question was objected to by defendant’s counsel, and the referee overruled the objection, but stated that he would reserve his decision on the admissibility of the question, and directed the witness to answer, to which ruling and decision the counsel for the defendant excepted. If the referee had afterwards decided that the testimony which was elicited was inadmissible, it might be necessary to inquire whether he could properly hear it and reserve his decision upon its admissibility until his final decision of the cause. In all of the cases to which we are referred upon this question, testimony was received on the trial and afterwards rejected, and this was held to be error because impressions made by evidence which is improperly received may remain after it is stricken ont, and may influence the final decision. If, however, the testimony is admissible and is retained, the declaration of the referee that he will reserve his decision upon its admissibility [26]*26until his decision of the case, cannot prejudice the party who objects to it, provided he is given the benefit of an exception to the overruling of his objection.
In this case an exception was taken to the ruling of the referee in.receiving the testimony, and the important inquiry is as to its admissibility. It did not relate to any act of violence to the plaintiff’s person, and it cannot be received if we are to construe the statute which declares cruel and inhuman treatment by the husband to the wife to be a cause for separation, to limit the evidence of such treatment to proof of the bodily injuries he may inflict upon her. But such a construction cannot be tolerated.
There are mental as well as physical sufferings, and as great cruelty and as much inhumanity may be manifested in producing the fiz’st as in causing the latter. They may be and often are produced by acts which cause no physical pain, and even by words alone. Accordingly, in cases like the present, such acts and words have been regarded as cruelties. Spitting on the wife is a gross act of cruelty (Clohen’s Case, Hetley, 149; D’Argular a. D’Argular, 1 Hagg. Ecc. R, 776); so also is a groundless and malicious chaz’ge against the wife’s chastity (Durant a. Durant, 1 Hagg. Ecc. R., 769; Lockwood a. Lockwood, 2 Curteis Ecc. R., 281); and it surely cannot be denied that the savage who„,in the presence of a mother, tortuz-es or slays her helpless infant, is guilty of as great cruelty to the mother as to the child; so the hzisband who in the presence of his wife, and notwithstanding her remonstrances, prayers, and entreaties, unmercifully and cruelly beats her yozmg child, outrages her matez-nal tendezmess and sympathies, and commits a violence upon her feelings which is cruel azzd inhuman. The evidence in regard to the treatment of the boy Joseph, does ziot establish such a case as I have supposed, nor indeed does it vez-y distinctly show that the punishment to which the defendant subjected him was more severe than that which, as a father, he might lawfully inflict. The question is not, however, upon the effect of the evidence, bzzt as to its admissibility, and we are sustained by azzthority in holding it to be adznissible. (Perry a. Perry, 1 Barb. Ch., 516; and 2 Ib., 311.)
The statute provides that the defendant in an action for sepai’ation or limited divorce, may prove in his justification the [27]*27ill conduct of the plaintiff, hut this must be of such as preceded or was contemporaneous with that which seeks to justify, for no-subsequent conduct of the defendant could furnish any-reason, excuse, or justification for his precedent act, and therefore the question as to the residence of the plaintiff, after she left the defendant, proposed, as it is alleged, for the purpose of showing “ an improper course of life,” was irrelevant, and the ruling of the referee in sustaining the objection to it was correct.
The complaint, in stating the acts of cruelty upon which the plaintiff intended to rely as constituting her cause of action, gave the dates of their occurrence with sufficient particularity to inform the defendant that some of them happened more than ten years before the commencement of the action, and if he intended to object to proof of them on that account, he should have taken the objection by answer, for such is the positive requirements of the Code (§ 74); equally applicable to those actions which were formerly known as suits in equity, as to actions at law.
The statute which authorizes actions of this character, provides that “ upon decreeing a separation in any such suit, the court may make such further decree as the nature and circumstances of the case may require, and may make such order and decree for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper.” (2 Rev. Stat., 447, § 54.)
To enable the court to exercise this po.wer intelligently, the pecuniary circumstances of the parties must be inquired into, and the allegation in the complaint as to the separate property of the plaintiff, and the evidence in regard to it were pertinent to this inquiry. The order of reference sent the action and all the issues therein to the referee, to hear, try, and determine. The allegations of the complaint in regard to the plaintiff’s separate property were denied by the answer, and the question thus presented was one of the issues which he was ordered to decide. My brethren, being a majority of the court, are of opinion that having made this decision, he was also authorized to determine the amount the -defendant should be adjudged to pay for the suitable support and maintenance of his wife and children, and that it was not irregular to enter a judgment em[28]*28bracing the further- decree of this character authorized by the statute, without first applying to the court.
We have repeatedly held in this district, that the acts which allow parties to be witnesses in their own behalf, are not to be so construed as to permit husband and wife to be witnesses for or against each other.*
[29]
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By the Court.
The plaintiff is the wife of the defendant, and the action is brought by her to obtain a judgment of separation from bed and board forever on account of alleged cruel and inhuman treatment, and of such conduct towards her on the part of her husband as rendered it unsafe and improper for her to cohabit with him. In addition to the facts alleged in the complaint as constituting this cause of action, it is also alleged that the plaintiff, in the year 1854, purchased a farm and premises in Queens county, and the furniture in the house therein with her own money, and that such farm and furniture are her separate property, and in the prayer for relief she aslcs that proper provisions may be made in the judgment for her having sole possession of such household furniture, that all proper provision be made for allowance, present alimony and costs, and that she may have such further and other relief as may be proper.
On the trial before the referee a witness, produced by the plaintiff, was asked whether he had seen any thing harsh in the defendant’s conduct towards his son Joseph, while his mother, the plaintiff was present. The question was objected to by defendant’s counsel, and the referee overruled the objection, but stated that he would reserve his decision on the admissibility of the question, and directed the witness to answer, to which ruling and decision the counsel for the defendant excepted. If the referee had afterwards decided that the testimony which was elicited was inadmissible, it might be necessary to inquire whether he could properly hear it and reserve his decision upon its admissibility until his final decision of the cause. In all of the cases to which we are referred upon this question, testimony was received on the trial and afterwards rejected, and this was held to be error because impressions made by evidence which is improperly received may remain after it is stricken ont, and may influence the final decision. If, however, the testimony is admissible and is retained, the declaration of the referee that he will reserve his decision upon its admissibility [26]*26until his decision of the case, cannot prejudice the party who objects to it, provided he is given the benefit of an exception to the overruling of his objection.
In this case an exception was taken to the ruling of the referee in.receiving the testimony, and the important inquiry is as to its admissibility. It did not relate to any act of violence to the plaintiff’s person, and it cannot be received if we are to construe the statute which declares cruel and inhuman treatment by the husband to the wife to be a cause for separation, to limit the evidence of such treatment to proof of the bodily injuries he may inflict upon her. But such a construction cannot be tolerated.
There are mental as well as physical sufferings, and as great cruelty and as much inhumanity may be manifested in producing the fiz’st as in causing the latter. They may be and often are produced by acts which cause no physical pain, and even by words alone. Accordingly, in cases like the present, such acts and words have been regarded as cruelties. Spitting on the wife is a gross act of cruelty (Clohen’s Case, Hetley, 149; D’Argular a. D’Argular, 1 Hagg. Ecc. R, 776); so also is a groundless and malicious chaz’ge against the wife’s chastity (Durant a. Durant, 1 Hagg. Ecc. R., 769; Lockwood a. Lockwood, 2 Curteis Ecc. R., 281); and it surely cannot be denied that the savage who„,in the presence of a mother, tortuz-es or slays her helpless infant, is guilty of as great cruelty to the mother as to the child; so the hzisband who in the presence of his wife, and notwithstanding her remonstrances, prayers, and entreaties, unmercifully and cruelly beats her yozmg child, outrages her matez-nal tendezmess and sympathies, and commits a violence upon her feelings which is cruel azzd inhuman. The evidence in regard to the treatment of the boy Joseph, does ziot establish such a case as I have supposed, nor indeed does it vez-y distinctly show that the punishment to which the defendant subjected him was more severe than that which, as a father, he might lawfully inflict. The question is not, however, upon the effect of the evidence, bzzt as to its admissibility, and we are sustained by azzthority in holding it to be adznissible. (Perry a. Perry, 1 Barb. Ch., 516; and 2 Ib., 311.)
The statute provides that the defendant in an action for sepai’ation or limited divorce, may prove in his justification the [27]*27ill conduct of the plaintiff, hut this must be of such as preceded or was contemporaneous with that which seeks to justify, for no-subsequent conduct of the defendant could furnish any-reason, excuse, or justification for his precedent act, and therefore the question as to the residence of the plaintiff, after she left the defendant, proposed, as it is alleged, for the purpose of showing “ an improper course of life,” was irrelevant, and the ruling of the referee in sustaining the objection to it was correct.
The complaint, in stating the acts of cruelty upon which the plaintiff intended to rely as constituting her cause of action, gave the dates of their occurrence with sufficient particularity to inform the defendant that some of them happened more than ten years before the commencement of the action, and if he intended to object to proof of them on that account, he should have taken the objection by answer, for such is the positive requirements of the Code (§ 74); equally applicable to those actions which were formerly known as suits in equity, as to actions at law.
The statute which authorizes actions of this character, provides that “ upon decreeing a separation in any such suit, the court may make such further decree as the nature and circumstances of the case may require, and may make such order and decree for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper.” (2 Rev. Stat., 447, § 54.)
To enable the court to exercise this po.wer intelligently, the pecuniary circumstances of the parties must be inquired into, and the allegation in the complaint as to the separate property of the plaintiff, and the evidence in regard to it were pertinent to this inquiry. The order of reference sent the action and all the issues therein to the referee, to hear, try, and determine. The allegations of the complaint in regard to the plaintiff’s separate property were denied by the answer, and the question thus presented was one of the issues which he was ordered to decide. My brethren, being a majority of the court, are of opinion that having made this decision, he was also authorized to determine the amount the -defendant should be adjudged to pay for the suitable support and maintenance of his wife and children, and that it was not irregular to enter a judgment em[28]*28bracing the further- decree of this character authorized by the statute, without first applying to the court.
We have repeatedly held in this district, that the acts which allow parties to be witnesses in their own behalf, are not to be so construed as to permit husband and wife to be witnesses for or against each other.*
[29]*29But by a rule of the court, especially provided for actions for separation or limited divorce, the plaintiff is allowed, in a reference, to take proof of the facts charged in the complaint, to be examined on oath as to any cruel or inhuman treatment [30]*30alleged in the complaint, which took place when no witnesses were present who are competent to testify to the facts on such reference.
The plaintiff in these cases is generally the wife, and as her [31]*31examination' against her hushand is not authorized except by the rule, her testimony can only be received when it relates to acts of cruelty of which there wvas no witness competent, to testify on the reference. In this case, the plaintiff was allowed to give evidence of acts of violence alleged to have been committed upon her by her husband at Limburg, Belgium, in the presence of Mr. De Cass. Unless Mr. De Cass was competent to testify orr the reference, this was proper, and the objection made to the testimony was not sufficiently explicit, as it did not allege his competency. Moreover, the principal facts which she stated occurred on that occasion, are proven by the evidence of Wm. II. Vyse.
The judgment should be affirmed with costs.
Present, Brown, Scrugham, and Lora, JJ.