Lifshitz v. Lifshitz

249 A.D. 859, 292 N.Y.S. 717, 1937 N.Y. App. Div. LEXIS 10023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1937
• Status: Published

Opinion

Order of the Domestic Relations Court of the City of New York (Family Court), County of Kings, directing the appellant to pay the sum of eight dollars weekly for the support of his wife and child, reversed on the law and the facts, without costs, and the proceeding remitted for a new hearing. In our opinion, it was error to refuse to accept the appellant’s proof that the wife had been guilty of conduct which relieved the husband of his obligation to support her. Subdivision 1 of section 92 and subdivision 1 of section 101 of the Domestic Relations Court Act of the City of New York simply empower that court to enforce the common-law obligation of a husband to support his wife. Subdivisions 5 and 6 of section 92 would be superfluous if the obligation of support under subdivision 1 was unlimited, depending on the relationship alone. The appellant concedes his obligation of support, regardless of misconduct, if the facts warrant a finding that the wife is likely to become a public charge. There is no such showing, but, on the contrary, the proof is that the wife has an income of sixty-five' dollars a month. It is undisputed that the husband has regularly contributed to the support of the child and that she did not have to go to court for that purpose. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.