Itzkowitz v. Itzkowitz

Appellate Division of the Supreme Court of New York

Itzkowitz v. Itzkowitz

33 A.D. 244, 53 N.Y.S. 356

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1898

StatusPublished

This text of 33 A.D. 244 (Itzkowitz v. Itzkowitz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Itzkowitz v. Itzkowitz, 33 A.D. 244, 53 N.Y.S. 356 (N.Y. Ct. App. 1898).

Pincite

Opinion

Per Curiam :

The principal ground urged for reversal is that the complaint. does not state facts sufficient to constitute a cause of action. This seems untenable. It is. alleged that the defendant, on March 26, 1898,, “ brutally beat this plaintiff about the head and face.” It is further alleged that defendant has absented himself from his hoine , since- May 16, 1898; that lie has failed.to furnish plaintiff with the necessaries of life, and that his entire course of conduct toward her, prior to the abandonment, was so brutal as to.undermine her health. Whatever the proof, these allegations are'sufficient. It- may be that a single instance of cruelty is not, of itself, enough to justify a suit for a separation (Solomon v. Solomon, 28 How. Pr. 218); but, taken in connection' with the other averments here, the beating alleged is sufficient. The general ill-treatmept is alleged - to have been sufficient to impair the plaintiff’s health, and so comes up to the legal requirements. (Perry v. Perry, 2 Paige, 501.) The" allegations of the complaint are supported by the verified averments of the petition, which are corroborated by the affidavit of,the-petitioner’s mother.

[245]*245The plaintiff’s allegations are denied by the defendant’s affidavits ; but a fair question seems to have been presented for the exercise of the discretion of the Special Term, which should not be disturbed.

The order should, consequently, be affirmed, with ten dollars costs and disbursements.

Present-—- Barrett, Rumsey, O’Brien and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Per Curiam :

The principal ground urged for reversal is that the complaint. does not state facts sufficient to constitute a cause of action. This seems untenable. It is. alleged that the defendant, on March 26, 1898,, “ brutally beat this plaintiff about the head and face.” It is further alleged that defendant has absented himself from his hoine , since- May 16, 1898; that lie has failed.to furnish plaintiff with the necessaries of life, and that his entire course of conduct toward her, prior to the abandonment, was so brutal as to.undermine her health. Whatever the proof, these allegations are'sufficient. It- may be that a single instance of cruelty is not, of itself, enough to justify a suit for a separation (Solomon v. Solomon, 28 How. Pr. 218); but, taken in connection' with the other averments here, the beating alleged is sufficient. The general ill-treatmept is alleged - to have been sufficient to impair the plaintiff’s health, and so comes up to the legal requirements. (Perry v. Perry, 2 Paige, 501.) The" allegations of the complaint are supported by the verified averments of the petition, which are corroborated by the affidavit of,the-petitioner’s mother.

[245]*245The plaintiff’s allegations are denied by the defendant’s affidavits ; but a fair question seems to have been presented for the exercise of the discretion of the Special Term, which should not be disturbed.

The order should, consequently, be affirmed, with ten dollars costs and disbursements.

Present-—- Barrett, Rumsey, O’Brien and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

33 A.D. 244, 53 N.Y.S. 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/itzkowitz-v-itzkowitz-nyappdiv-1898.

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