People ex rel. Feeney v. Dershem

78 A.D. 626

Opinion

Jenks, J.:

The offense is of a criminal character, and the statute being penal must be strictly construed. (People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 629.) As the statute and its kind do not afford a civil remedy for the support of the wife, but are designed to prevent her from becoming a charge upon the public purse (Bayne v. People, 14 Hun, 181; People ex rel. Douglass v. Naehr, 30 id. 461), an essential fact to be established was the danger of such charge. (Greater N. Y. Charter [Laws of 1897, chap. 378], § 685.) We are not satisfied that the People clearly proved their case. The plaintiff upon her direct examination testified that her husband had offered to give her “ a flat uptown,” but that she “ didn’t care to take that ” — she did not care to accept. While it is true that she subsequently testified that she did not remember whether he had “ ever offered me a home,” she also testified that she was not willing to live with her husband. If it should appear upon the rehearing that the husband had in good faith offered to maintain his wife, who was unwilling to occupy a home with him, and that she had capriciously or unreasonably refused a fair provision for her keep, then he is without the purview of the statute. If, on the other hand, the offer was a mere formality, without good faith, or made under such conditions as assured its rejection, it would not, of course, shield him from the statute. Moreover, the testimony as to which one of the two abandoned the other is unsatisfactory, and that question can be more clearly determined by a closer and more searching investigation.

Note. — The rest of the cases in this term will he found in the next volume 79, App. Div.— [Rep.

For the reasons stated, we think that the judgment should be reversed and a new trial ordered.

Goodrich, P. J., Bartlett and Woodward, JJ., concurred; Hirschberg, J., dissented.

Judgment reversed and new trial ordered.