Opinion
May 10, 1907.
Joseph Fischer of counsel [ Alexander Rosenbaum, attorney], for the appellant.
Isaac Josephson, for the respondent.
This is an appeal from an order of the Special Term awarding to the plaintiff a counsel fee of fifty dollars and alimony pendente lite at the rate of ten dollars per week. The action is brought for a separation on the ground of the alleged abandonment of the plaintiff by the defendant.
The summons was dated September 17, 1906, and was served on the eighteenth of September. The complaint was verified on the eighth day of November, and alleges that the plaintiff has always conducted herself towards the said defendant as a faithful and obedient wife, but that the defendant, disregarding his duty as a husband and without the plaintiff's consent, has been wilfully and continuously absent from the plaintiff's home for upwards of two months, and with the intention not to return. In her moving affidavit the plaintiff alleges "that in the early part of September, 1906, the defendant abandoned the plaintiff, and that the defendant ceased to provide for the support of deponent or for the support of the child."
It appears that the defendant is a butcher by trade; that on the 16th of September, 1906, he left his home at about nine A.M., to attend to business, as usual; that on the evening of that day he had to deliver some meats and make collections at Coney Island; that he was detained and did not get back to the borough of Manhattan until one-thirty in the morning, and that as he had to go to market at three o'clock in the morning he did not go home.
Upon this one night's absence from the house, incident to the prosecution of the defendant's business, the plaintiff, upon the next day, sought a lawyer and issued a summons. On the seventeenth the defendant was also kept down town by the exigencies of his business, but on the eighteenth returned home to the flat, for which he had paid the rent for the month of September, to find the flat vacant, his wife and child missing and all the furniture and household effects removed.
Although the summons was issued after one night's absence from home, by delaying the verification of the complaint until the eighth day of November the plaintiff was enabled to allege that the defendant had been wilfully and continuously absent from the plaintiff's home for upwards of two months. This action is brought solely for abandonment.
The defendant denies any intention of abandoning his wife and child; has sought to have her return to him and on various occasions and in writing has urged her return and offered her a home. It cannot be that a single night's absence from a home for which the rent was fully paid for the current month, which was furnished and in which the wife and child were being supported, can justify the wife in leaving that home so provided by the husband and the commencement of an action for separation based solely upon the charge of wilful abandonment.
The term "abandonment," as used in the law of divorce, contemplates a voluntary separation of one party from the other without justification and with the intention of not returning. ( Williams v. Williams, 130 N.Y. 193.)
There was nothing before the court to establish either the voluntary separation of the defendant from the plaintiff or an intention upon his part of not returning. "An allegation of abandonment generally and of a neglect or refusal to support, * * * is not sufficient whereon to found a motion for alimony where it is denied. The applicant is bound to set forth the facts and circumstances which constitute the supposed abandonment, in order to enable the court to decide whether it ever occurred." ( Boubon v. Boubon, 3 Robt. 715.) There is nothing to show any neglect or refusal to support the plaintiff up to the moment that she herself left the home provided for her. Where a wife brings an action for separation in order to entitle her to an order for the payment of alimony she must present to the court some evidence tending to show that there is reasonable ground for her commencing the action and that there is reasonable probability that she will succeed in establishing her charges.
As she has entirely failed to meet this obligation she was not entitled to the relief granted, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
PATTERSON, P.J., INGRAHAM, LAUGHLIN and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.