
    GARDINER v. GARDINER.
    
      N. Y. Superior Court; Chambers,
    
    September, 1877.
    Arrest.—Limited Divorce.—Dorm of Affidavit to obtain Arrest in Action for Limited Divorce ; and of Order.
    In an action by a wife for a limited divorce, on account of cruel treatment, an order of arrest can be granted, under section 549a subd. 2, and section 550, subd. 4, of the Code of Civil Procedure.
    Application for order of arrest.
    This was an action for limited divorce by Anna. E. Gardiner, against John H. Gardiner.
    The complaint alleged the marriage of the plaintiff to the defendant, and that both parties, were residents of this State. It then set forth in detail numerous acts of cruelty, and alleged:
    " Seventh. That thé said defendant is engaged in a large, lucrative, and important business or occupation, and as this plaintiff is informed and believes, owns real estate to the amount of not less than $30,000 in value, and is possessed of personal estate to the amount of $40,000.”
    The affidavit upon which the application for the order of arrest was made, was as follows, viz:
    
      
      [Title of the cause. ]
    
      [Venue.]
    
    Anna E. Gardiner, being duly sworn, deposes and. says : that she is the plaintiff herein, and is the wife of the said John H. Gardiner, the defendant herein ; that from the time of her marriage to the said John H. Gar-diner, on the 22nd day of May, 1866, up to and including the 20th day of September, 1877, she has and did reside with the said defendant, and was in all things a loving, dutiful, and obedient wife to Mm. That during the whole of said term of years, but more especially since about the beginning of the year 1873, defendant has been an habitual drunkard, and has abused, reviled and maltreated deponent to her great bodily harm, injury and distress. That on the 17th day of September, 1877, deponent commenced an action in this court against the said defendant for limited divorce, on the several grounds of habitual drunkenness, cruelty, and abuse. That on the 21st day of September, 1876, she caused defendant to be served with the summons and complaint herein, in which said complaint all of defendant’s acts of cruelty, so far as deponent could recollect them, are more fully set forth, and deponent makes the said complaint a part of her affidavit herein.
    That since the service of the said summons and complaint, the defendant herein has not been seen either at his house, No. 129 McDougal street, or elsewhere at any of the places where it was his wont and habit to be and spend his time. That defendant herein has frequently declared that he had funds, moneys and property in England, beyond the jurisdiction of this court, and that in case deponent ever brought any action of any kind against Mm, he, the said defendant, would leave this country and abandon his wife and children, leaving them penniless and destitute.
    
      And deponent further says that she is informed and verily believes that the said John H.’Gardiner is now preparing to leave this country and betake himself outside of the jurisdiction of this honorable court, wherefore deponent asks that the said defendant be arrested and held to bail to abide the event of this action.
    
      [Jurat.] [Signature.]
    
    
      James M. Ward, for the plaintiff, in support of the application,
    Cited, section 549, subd. 2; and section 550, subd. 4, of the Code of Civil Procedure, and Jamieson v. Jamieson, 11 Hun, 38.
    
    
      
       The affidavit on which the order of arrest was granted in Jamie-son *. Jamieson, was as follows:
      
        [Title of the cause.]
      
      
        [Venue.]
      
      “Maey L. Jamieson, the plaintiff above named, being duly sworn says, I am the wife of the defendant, David F. Jamieson; I am an inhabitant of the city, county and State of Hew York; I have resided in the said city with my said husband for the past year and four months. I was married to the defendant on the 6 th day of Hay, 1874, at Jersey City in the State of Hew Jersey; I am now twenty-five years of age and my husband is thirty-seven years of age; ” [here followed allegations of his business and Ms faculties; and of indignities and insults commenced soon after his marriage and often repeated y] “ when we arrived at London, on or about the 14th day of Hovember, 1874, at the house of his cousin, Mrs.. David Hume, after we had retired for the night, he began abusingme about my folks at home; we were in bed at the time, and I was crying and in great distress, whereupon my said husband assaulted me violently, seized me by my hair, and knocked my head with great force and cruelty against the wall of the room, against which the bed stood, thereby inflicting on me severe pain; again, at the same house, about ten o’clock on a certain night, his said cousin was ill; I was in her room nursing her, when I heard my husband come into the house and go to our sleeping room; I immediately went to our said room, and was preparing to retire, when suddenly my husband raised his hand and cruelly struck me in my face with great severity, seized me roughly by my shoulders and forcibly ejected me from our said room; I went back crying to his cousin, who said she was afraid to keep me in her house, as he might abuse her, but would send me to a friend. This occurred about Hovember, 1874; again, about two weeks after we left London, and while staying in Edinburgh, at my husband’s sister’s house, on Hew Year’s night of 1875, his sister and her husband had gone to a wedding, and my husband and I were the only persons in the house, except two little children, my husband began to abuse me and call me vile names, and said he was not the father of our baby—that it was a bastard; I ran into the bed-room where the two-little children were asleep; he followed me and I was obliged to fall on my knees,' and swear that he was the father of my child, (with which I was all this time pregnant, our baby not having yet been born). I felt sure he would kill me, and my nerves were completely shattered by his cruel conduct, for which there was no possible provocation on my part; he became more and more angry and passionate, and cursed me, and said I lied, and that he would cut my throat with a razor, and he started for his razor; I ran to the hall door, but could not open it; I ran back to the children’s room; they were awake and screaming; their screams alarmed some of the neighbors, and the front door bell rang, and my husband went to the door, and conversed, with the person at the door, and I verily believe, that but for this slight interference my life would probably have been taken by my husband. About the month of February, 1875, we hired a furnished flat, and went to housekeeping; my husband’s conduct there was brutal in the extreme; on coming home, if his dinner was not ready, he would go to the kitchen and throw it into the fire; at one time he upset the table and broke all the dishes on it; ran after me in the bedroom, and violently struck me three or four blows in my face, telling, me to write that to my mother. When our baby was four months old, about August, 1875, we sailed from Scotland for America; his abusive conduct was such that it was the general talk among the passengers; he applied such vile epithets to me that I do not think the same fit to embody in this affidavit. On our arrival at Hew York, about the 9th of September, 1875, we went" to the Grand Central Hotel in Hew York City to board, and on the second night after our arrival, he missed a book containing some letters; he accused me oi stealing it, and of destroying the letters; he took our girl baby from my arms, and threatened to throw her out of the window, if I did not find the book; he threatened to strike me, and cursed me, called me [“ quoting epithets,”] and followed me about the room, and threatened to strike me, and I was in such a fear that I snatched the child from him, and ran from the room into the hall, where many of the servants and some of the guests had congregated by reason of his said loud and abusive language to me, and of them I sought and obtained protection from him, until I could get my brother to me, to protect me against violence from my said husband.” [In similar manner other acts of cruelty were alleged, at length concluding with an allegation of deponent's innocence of his charges.]
      
      “That my husband’s entire conduct towards me has been cruel and inhuman, he being frequently beastly intoxicated, and at such times, as likewise when sober, he has struck, and threatened to strike, and assaulted me, and has often threatened to kill me; that in consequence of such cruel conduct and ill treatment I have been completely broken in spirits, my physical health has been much impaired and my nervous system disarranged, and I have suffered great mental anguish and physical pain by reason thereof, and I verily believe that my husband will kill me if he is allowed an opportunity to do so.
      “Lastly, I am about to commence by the summons and complaint hereto annexed, an action in this court against my said husband for a limited divorce upon the cause of action herein stated and in said complaint mentioned.”
      
        [Signature. ]
      
      
        [Jurat.]
      
      Upon this affidavit and verified complaint the order of arrest was granted.
    
   Van Vorst, J.,

After consideration, granted the motion.

The order issued was as follows:

[Title of the cause.] “Order to arrest and hold to
To the Sheriff of the County of New York.

It having been made to appear to me by the affidavit of Anna E. Gardiner, that a sufficient cause of action exists against the defendant, John H. Gardiner, and that the case is one of those mentioned in article 1, chapter 7, title 1, of the New York Code of Civil Procedure, and that the ground of arrest is one stated in the New York Code of Civil Procedure, section 549, subdivision 2, and also in section 550, subdivision 4.

“You are required forthwith to arrest John H. Gardiner, the defendant in this action, if he is found within your county, and to hold him to bail in the sum of Five thousand dollars and to return this order with your proceeding thereunder, as prescribed by law.

“Dated, September 27th, 1877.
Hooper C. Van Vorst,
Judge S. Court.
“James M. Ward,
Plaintiff’s Attorney,
99 Nassau St.”  