
    The People of the State of New York ex rel. The Commissioners of Public Charities and Correction, Respondents, v. William Cullen, Appellant.
    1. Appeal—Enlargement oe Jurisdiction of Court of Appeals. It seems, that the provisions of the Constitution (Art. 6, § 9), regulating the jurisdiction of the Court of Appeals and providing that the legislature may further restrict it, do not prohibit the legislature from enlarging the jurisdiction of the court, save only in those special cases which are expressly withdrawn from its review.
    2. L. 1895, Ch. 601, § 20 — Review of Judgment of New York City Magistrate. The legislature has the power to enact a statute (such as L. 1895, ch. 601, § 20), the effect of which is to provide for a final review in the Court of Appeals of a judgment or order made by .a city magistrate of the city of New York convicting a party as a disorderly person, not theretofore reviewable in that court.
    3. Review of Conviction as a Disorderly Person, for Abandonment of Wife. By force of the statute (L. 1895, ch. 601, § 20), an appeal now lies to the Court of Appeals, as matter of right, from a judgment of the Appellate Division of the Supreme Court affirming a judgment of the Court of Special Sessions of the city and county of New York adverse to the defendant, in a proceeding commenced before a city magistrate, in which the defendant was convicted of being a disorderly person in that he had abandoned his wife without adequate support, and where a question of law is presented for review.
    4. Proceeding for Abandonment. The statute (Consolidation Act, L. 1882, ch. 410, § 1454 et seq.), providing for proceedings in the city of New York against a person who has abandoned his wife without adequate support, is summary and penal and should be strictly construed; and the charge thereunder is of a criminal nature, which it is incumbent on the People to prove.
    5. Husband and Wife—Abandonment. Abandonment of the wife by the husband, within the meaning of the statute providing for proceedings against him as a disorderly person by reason thereof, means a willful and voluntary separation by the husband from his wife without justification.
    6. Abandonment—Separation. There is no abandonment, within the meaning of the statute, when the husband lives apart from his wife in obedience to a judgment of separation from bed and board, obtained at the suit of the wife.
    7. Support. The common-law obligation of a husband to support his wife is so modified by a judicial separation from bed and board that it cannot be enforced by a proceeding for abandonment under the statute while such separation is in force, even if the decree of separation makes no provision for support.
    
      People ex rel. Comrs., etc., v. Cullen, 17 App. Div. 635, reversed.
    (Argued June 17, 1897;
    decided October 5, 1897.)
    Appeal from a judgment of the Appellate.Division of the Supreme Court in the first judicial department, entered upon an order made May 14, 1897, which affirmed a determination of the Court of Special Sessions of the city and county of New York affirming a conviction of the defendant as a disorderly person by a police magistrate of the city of New York.
    The proceeding was founded on sections 1454 and 1455 of the New York City Consolidation Act (L. 1882, eh. 410).
    The facts, so far as material, are stated in the opinion.
    
      Pciyson Merritt for appellant.
    The determination of the Court of General Sessions in the former proceeding is final and conclusive upon the rights of both parties. (People ex rel. v. Cullen, 151 N. Y. 54; Code Crim. Pro. § 518.) The statute under which this defendant was convicted is a penal statute, and as such is to be strictly construed. (People v. Court of Special Sessions, 15 N. Y. S. R. 328 ; People ex rel. v. French, 102 N. Y. 583 ; People v. Pettit, 74 N. Y. 320; People v. Crandon, 17 Hun, 490.) The object of the statute is not to create a new obligation on the part of the husband, but to provide a new remedy for enforcing an existing obligation and to punish a failure to fulfill it. The statute has no application in a case where no obligation exists. (People v. Brady, 13 Misc. Rep. 294; People ex rel. v. Naehr, 30 Hun, 461.) The obligation of the defendant to support the complainant was terminated by the decree of 1883. (2 Pars, on Cont. 85 ; Tyler on Inf. & Cov. § 700; Schouler on Husband & Wife, § 118; Schouler on Dom. Rel. § 222; Code Civ. Pro. §§ 1759, 1762, 1766; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Kamp v. Kamp, 59 N. Y. 212; Romaine v. Chauncey, 129 N. Y. 566; Galusha v. Galusha, 116 N. Y. 635 ; Wetmore v. Wetmore, 149 N. Y. 520; People v. Pettit, 74 N. Y. 320.) The statute under which these proceedings were taken was not intended to apply to a case where the obligation of the marital contract has been modified by a decree of limited divorce at the instance of the wife. (People v. Naehr, 30 Hun, 461; People v. Brady, 13 Misc. Rep. 294.) The judgment of separation between the complainant and the defendant in 1883 is binding upon the People hi this proceeding. (People v. Baker, 76 N. Y. 78 ; Rigney v. Rigney, 127 N. Y. 408.) The proofs do not sustain the charge of which the defendant was accused and convicted. (L. 1882, ch. 410, § 1454; Fitzgerald v. Fitzgerald, L. R. [1 P. & D.] 694; Thompson v. Thompson, 1 S. & T. 231; Pope v. Pope, L. R. [20 Q. B. Div.] 76 ; Regina v. Leresche, 65 L. T. Rep. 602; Williams v. Williams, 130 N. Y. 193.)
    
      Percy McEVrath for respondents.
    It is sufficient to convict one as a disorderly person if he is proved to have abandoned his wife in the city of Hew York without adequate support, or to have left her in danger of becoming a burden upon the public or to have neglected to provide for her according to his means. (L. 1882, ch. 410, §§ 1454,1455 ; Code Crim. Pro. § 899; Bulkley v. Boyce, 48 Hun, 259 ; People ex rel. v. Hodgson, 126 N. Y. 648; People v. Court of Special Sessions, 15 N. Y. S. R. 329.) There is a marked distinction between the legal consequences which result from a divorce a vinculo matrimonii and a separation merely from bed and board. (Code Civ. Pro. §§ 1756, 1762; 2 Bishop on Mar. & Div. §§ 726-741; Barrere v. Barrere, 4 Johns. Ch. 187; Burr v. Burr, 10 Paige Ch. 25; Tonjes v. Tonjes, 14 App. Div. 542; Erkenbrach v. Erkenbrach, 96 N. Y. 465.) The plaintiffs in this proceeding were not parties or privies to the action in the Superior Court, and are in no way bound or estopped by the judgment or orders made in that action. (Bd. Suprs. v. Budlong, 51 Barb. 515 ; Collins v. Hydorn, 135 N. Y. 320 ; Furlong v. Banta, 80 Hun, 248 ; In re Niagara State Reservation, 37 Hun, 553 ; People v. Rohrs, 16 N. Y. S. R. 783; 1 Greenl. on Ev. § 524; Goddard v. Benson, 15 Abb. Pr. 191; Scott v. Brennan, 9 Daly, 326; Booth v. Powers, 56 N. Y. 22; Neeson v. City of Troy, 29 Hun, 173.) The subject-matter and the cause of action in the case of Cullen v. Cullen were not the same as in this proceeding, and the plaintiffs are not affected, barred or estopped by the judgment or orders made therein. (People v. Crandon, 17 Hun, 490; People v. Mitchell, 2 T. & C. 172; Stowell v. Chamberlain, 60 N. Y. 276; Stannard v. Hubbell, 123 N. Y. 531.) The plaintiffs herein are not bound by immaterial and collateral facts decided in a previous action. (Hecht v. Hecht, 14 Misc. Rep. 597 ; Bishop on Mar. & Div. [4th ed.] § 350; Galusha v. Galusha, 138 N. Y. 272; House v. Lockwood, 137 N. Y. 259; Shaw v. Broadbent, 129 N. Y. 123 ; Stannard v. Hubbell, 123 N. Y. 531; Springer v. Bien, 128 N. Y. 102; Bigelow on Estoppel, 158; Barrs v. Jackson, 1 Y. & C. 585; King v. Chase, 15 N. H. 9.) A judgment in a former suit is conclusive as to existing •rights, but not as to matters which may subsequently arise. (People ex rel. v. Hodgson, 126 N. Y. 648; Smith v. McCluskey, 45 Barb. 610 ; Brennan v. Blath, 3 Daly, 479.) It was not the intent of the Superior Court that its failure to order the payment of alimony should deprive the plaintiff of all -support from her husband. It was the practice of that court to deny such applications for alimony on the ground that the applicant would find a more speedy and efficient means of procuring support by having the proceedings brought before a police magistrate, as was done in this case. (Roupp v. Roupp, 35 N. Y. Supp. 250; Patton v. Patton, 35 N. Y. Supp. 250.) These proceedings are brought under the provisions of sections 1454 and 1455 of the Consolidation Act and the provisions of the Revised Statutes, to convict the defendant of being a disorderly person, and they are not governed or controlled by foreign or local acts affecting only particular localities. (Waltermire v. Waltermire, 110 N. Y. 183; People v. Meyer, 12 Misc. Rep. 613.) The plaintiffs •are not barred by lapse of time from bringing these proceedings. (People ex rel. v. Hodgson, 126 N. Y. 648; People v. Court of Special Sessions, 15 N. Y. S. R. 329.) It cannot with justice be claimed that Eliza Cullen has made no demand npon the defendant for support. (People ex rel. v. Hodgson, 126 N. Y. 648; People v. Crandon, 17 Hun, 490.)
   O’Bbien, J.

The defendant was tried before one of the ■city magistrates in the city of Hew York and was adjudged to be a disorderly person, in that he had abandoned his wife and had left her in danger of becoming a charge upon the public. The proceeding was instituted before the magistrate upon a verified complaint of the wife on the 12th day of August, 1896. The trial resulted in a conviction on the - 12th day of December, 1896, and the defendant was thereupon ordered to pay to the commissioners of public charities the sum •of $8 per week for one year for their indemnity and for the support of his family in the meantime. It appeared that the ■defendant and the complainant were married in the year 1862; that they separated in 1868, since which date they have not lived together. There is no issue of the marriage. It further appeared that on the 15th day of October, 1883, in an action for separation from bed and board, instituted by the wife in the Superior Court, judgment was entered upon her motion that the parties be separated from bed and board and that the defendant p>ay the costs of the action.

The judgment recited that it appeared from the report of a referee that the present circumstances and abilities of the ■defendant are such that he cannot personally pay any sum whatever for alimony and counsel, and no sum was allowed for either purpose. The judgment, however, contained a •clause to the effect that in the event of the pecuniary circumstances of the defendant becoming materially changed, touching his ability to support his wife, an application for that purpose might be made at the foot of the judgment by any party in interest for a modification of the judgment touching the support of the wife or any other matter as might appear to be just.

The conviction of the defendant upon these facts was reviewed and affirmed by the Court of Sessions, and subsequently by the Appellate Division of the Supreme Court. Until the enactment of a recent statute, this court had no power to review a judgment originating in such a proceeding. (People ex rel. Comrs., etc., v. Cullen, 151 N. Y. 54.) But, by ch. 601, § 20, Laws of 1895, provision is made for an appeal to this court from such a judgment when adverse to the defendant.

The learned counsel for the People contends that this statute is unconstitutional and void, and moves to dismiss the-appeal. This contention is founded upon the provisions of' article 6, § 9, of the Constitution, regulating the jurisdiction of this court and providing that the legislature may further restrict this jurisdiction. It was never supposed that there was anything in the Constitution to prohibit the legislature from enlarging the jurisdiction of this court and extending it to new cases from time to time as it thought proper, save only in those special cases enumerated in the article, which are-expressly withdrawn from review.

The jurisdiction must be confined to questions of law, and in some cases the unanimous decision of the Appellate Division is made final. These limitations are, of course, binding upon the legislature as well as the courts, and cannot be transcended. But, subject to these provisions, it is entirely competent for the legislature to provide for a review in this court of any question of law involved in a judgment after a hearing in the Appellate Division.

The power to further restrict appeals does not by any fair or reasonable implication exclude the power to énlarge the jurisdiction by providing for a review of certain judgments-of inferior courts that were not reviewable before. The questions that may be considered in such cases are, of course, limited by the restrictions contained in the Constitution, but the sole question here is whether the legislature has the power to-enact a statute providing for a final review in this court of a. judgment or order made by a magistrate convicting a party as a disorderly p'erson. There is no good reason to doubt the existence of such power. The judgment or order must be-one entered upon the decision of the Appellate Division finally determining some action or special proceeding when the appeal is given as matter of right. None of the limitations upon appeals to this court contained in the Constitution have been ignored by the statute in question, and so, we think, the jurisdiction to review the decisions below is clear.

The question is purely one of law, whether upon the undisputed facts presented by the record the defendant had abandoned or deserted his wife within the fair meaning of the statute. The charge of which the defendant was convicted, if not a crime within the meaning of the Penal Code, was clearly of a criminal nature, and it was incumbent upon the People to prove it. The statute is summary, highly penal and should be strictly construed. (People ex rel. Kopp v. French, 102 N. Y. 583; People v. Pettit, 74 N. Y. 320; People ex rel. Douglass v. Naehr, 30 Hun, 461.)

It is the duty of the husband to support his wife, but he is not bound to support her away from his home, even though such home may be disagreeable to her. The statute under which the defendant was convicted evidently contemplates the actual existence of the marriage relations. After a judicial separation at the suit of the wife the relation is so far terminated or suspended that the husband cannot be guilty of abandonment or desertion in any legal sense. The judgment operated to change the contract relations between the parties, and required them to live apart from each other. The wife was relieved from her marital duties and the husband’s obligation to support her could not remain as it was before. It was no longer possible for him to discharge it in the sense that the marriage state contemplates. In such cases the court generally substitutes in place of the contract obligation to support, recognized by the common law, a provision for suitable maintenance according to the circumstances of the parties, to be paid by the husband or from his estate. When a judicial decree of separation from bed and board has once been pronounced, the common-law obligation to suppórt the wife, if not entirely abrogated, is greatly modified. Alimony then becomes the regular measure of the husband’s obligation. It is granted or withheld always in furtherance of justice, and the amount is regulated by the exercise of a sound discretion according to the circumstances of the parties. When the marriage bond was modified by the decree of separation the legal obligation to support the wife in the sense that it existed before ceased, and in its place was substituted the power of the court to appropriate some part of the property or earnings of the husband to that purpose as justice might require. (Kamp v. Kamp, 59 N. Y. 212; Romaine v. Chauncey, 129 N. Y. 566 ; Galusha v. Galusha, 116 N. Y. 635; Wetmore v. Wetmore, 149 N. Y. 520 ; Schouler on Husband & Wife, § 118; Parsons on Cont. vol. 2, p. 85 ; Tyler on Infancy and Coverture, § 700, p. 924.)

In this respect there does not appear to be any difference between an absolute and limited divorce based upon the misconduct of the husband. In neither case can there be an abandonment or desertion within the meaning of the statute. The statute was never intended to apply to a case like this, where the obligations of the marital contract have been modified by a decree of the court, and where the defendant is guilty of no act except to obey the decree.

It is quite true, as the learned counsel for the People contends, that the judgment in the divorce action did not dissolve the marriage. The parties still remained husband and wife in the eye of the law. Neither the husband nor the wife was competent to contract a new marriage. But, practically, the duties and obligations of the marriage relation were radically affected and wholly changed. The wife had been relieved from all her obligations. She was no longer bound to perform any of the duties of a wife.

If it be said that the husband was still under obligations to support the wife, the question arises, how was he to discharge tiffs obligation ? Certainly not in the manner contemplated by the marriage contract and enjoined by the common law, since they had been separated by the decree of a competent court. The marital duty of the husband to support the wife always presupposes the fact that they are living together as husband and wife. This obligation, in its proper sense, contemplates an actual union of the two parties, maintaining to each other the practical relations of husband and wife.

When they have been separated by the judgment of a court for the misconduct of the husband, it is true that the obligation of the husband is not wholly terminated, but it assumes another form and rests upon different principles. Their duties and obligations towards each other during the separation are just what the court may have prescribed, and no other. Those implied from the actual existence of the marriage relations have ceased or are suspended, and the provisions of the decree of a court of equity have been substituted in their place.

An action for a limited divorce is really an appeal to a court of equity by one of the parties to a marriage contract for a modification of the marriage relations, duties and obligations as they exist at common law.

The court is virtually asked to change and readjust these relations and to prescribe such new duties and obligations to be observed by the litigants as justice may require. Such a decree, when made, is the charter that, during the separation, must regulate the obligations and duties of the parties.

They cannot be regulated by the decree and the common law at the same time. The two methods of enforcing the marital duties and obligations are wholly inconsistent with each other. 0 They proceed upon theories and are based upon principles so radically different that both cannot operate together. The decree, so long as it remains in force, must be presumed to contain all the provisions for the support of the wife that justice required or that the circumstances of the husband would warrant. If, by reason of changed conditions and circumstances, it becomes unjust to either party the remedy is to apply for its modification The statute in question cannot be made to take the place of the decree. It was not intended to apply to a case where the wife had procured from a court of equity a readjustment of her marriage relations. It has been adjudged by the decree that the defendant, by misconduct, has forfeited all right to the services or society of his wife, and yet the husband has been convicted of an offense of a criminal nature for failing to do something that the decree does not require him to do.

It may be that the husband ought, in justice and equity, to be compelled to support his wife, or to contribute to her support. That is a question of which the divorce court has still jurisdiction, and it must be presumed that when appealed to by the wife it will determine her claim in conformity with justice.- But the question here is whether the husband has committed the statutory offense of desertion- or abandonment. 'The criminal law does not, as a rule, deal with acts or motives that are merely constructive. It deals with the actual conduct .and motives of men. Abandonment, in the sense in which the term is used in the statute, means the actual and willful ■desertion by the husband of the wife. It is the willful act of actually leaving her, or separating from her, and the withdrawal of all aid and protection implied in the marriage relations. If the wife herself procures the separation, or consents to it, the case does not come within the statute. It cannot be the result of an agreement or affected by the judgment ■of a court, but must be what is known to the criminal lanr as willful and voluntary desertion or abandonment. In Fitzgerald v. Fitzgerald (L. R. [1 P. & D.], 694) the court thus stated the rule applicable to the construction of a similar statute: “ Ho one can desert who does not actively and willfully bring to an end an existing state of cohabitation. If the state of .cohabitation has already ceased to exist, whether by the adverse .act of husband or wife, or even by the mutual consent of both, desertion, in my judgment, becomes from that moment impossible to either, at least until their common-law life and home have been resumed.” And desertion or abandonment has been defined in substantially the same language in other cases. (Pape v. Pape, L. R. [20 Q. B. D.], 76; Thompson v. Thompson, 1 S. & T. 231.)

The same or similar terms, when used in the law of mam-age and divorce, have been defined by this court, and it is held that desertion means the willful and voluntary separation by the husband from his wife without justification and with the intention of not returning. (Williams v. Williams, 130 N. Y. 193.)

Abandonment cannot mean anything more than desertion. When used to characterize the act of the husband the words are generally used interchangeably.

The fact that the court in the decree of separation made no allowance for the wife does not change the situation. The court did exercise its power and discretion on the subject, and held that the pecuniary circumstances of the defendant would not warrant an allowance then, but left it open to the complainant to apply for alimony whenever the pecuniary circumstances of the defendant changed. This remedy has always been open to the wife and is open to her still. If the defendant has any pecuniary ability to contribute to his wife’s support the divorce court has the power to modify the decree. If he has not, then there is really no ground for this proceeding. The age and physical condition of the defendant leave no room for the supposition that he is capable of earning anything for this purpose.

We think that the charge of abandonment was not sustained by the facts and that the conviction of the defendant under the circumstances was erroneous. The defendant had not abandoned his wife within any fair interpretation of the statute.

The order of the Appellate Division, the Special Sessions and the magistrate. should be reversed and the defendant dischai’ged.

All concur, except Gbay,' J., absent.

Order reversed.  