Downes v. Downes

225 A.D. 886, 233 N.Y.S. 39

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1929
• Status: Published

Opinion

Order granting motion for temporary alimony and counsel fee reversed upon the law and the facts, without costs, and motion denied, without costs. The plaintiff, in an action for a separation upon the grounds of abandonment, non-support and cruel and inhuman treatment, obtained an order for temporary alimony and counsel fee. Plaintiff’s aged parents reside with the parties. Defendant denies the wife’s charges. He refuses to live with the wife’s parents. Plaintiff refuses to have marital relations with defendant, and the record does not show any adequate excuse for such refusal. Under such circumstances defendant cannot be held to the marriage contract. “ * * * the wife who refuses to discharge her obligations to her husband cannot be heard to find fault because she is reaping the natural results of her conduct.” (Mirizio v. Mirizio, 242 N. Y. 74, 81.) Defendant chose a new domicile and offered a home and maintenance to his wife and two sons, but not to the wife’s relatives. The husband is not required to live with Ms wife’s relatives. (Field v. Field, 79 Misc. 557.) It was the wife’s duty to go with her husband to the home which he had provided. (People v. Pettit, 74 N. Y. 320; People v. Flewellyn, 111 N. Y. Supp. 621.) Seeger, Carswell and Scudder, JJ., concur; Lazansky, P. J., and Young, J., dissent.