Terhune v. Terhune

40 How. Pr. 258

• Court: New York Court of Common Pleas
• Decided: December 15, 1870
• Status: Published

Opinion

By the court, Loew, J.

This action was brought by the wife for a limited divorce on the ground of cruel and inhuman treatment on the part of the husband. The answer denies the charges of cruelty, &c., contained in the complaint, and as a further and separate defense alleges on information and belief that the plaintiff committed adultery with various persons therein named, and concludes with a demand that the complaint be dismissed. The plaintiff demurred to that part of the answer which sets up her adultery as a defense. The demurrer was overruled at special term, and the plain» tiff thereupon brought this appeal.

In an action of this kind, it is not admissible for the defendant to interpose the plea of adultery on part of the plaintiff as a defense. (Henry agt. Henry, 17 Abb., 411.)

To hold otherwise would involve the necessity of conceding that a husband has the right to treat his wife in a cruel and inhuman manner, because she may have been guilty of adultery. This we are not prepared to do. Ho matter how reprehensible the conduct of the wife may have been, it will not justify the husband in a resort to acts of violence which endanger her life or health, and rendering it unsafe for her to cohabit with him. The proper remedy, and in fact, the only one provided by law, for a husband under such circumstances, is an application to the courts for a redress of Ms grievances.

The order appealed from should be reversed.

Chief Judge Daly and Judge Larremore, concurred.