
    Supreme Court—Appellate Division—First Department.
    May 19, 1899.
    PEOPLE ex rel. KELLER v. GEORGE SHRADY
    1. Criminal law—Support op wife.
    The infidelity of the wife justifies the husband in separating from her, and thereupon terminates his obligation to support her.
    3. Same.
    To be relieved from that duty he must secure a severance of the tie or prove facts which would entitle him, if innocent, to such severance 8. Same.
    Where the husband, as well as the wife, is unfaithful to the marriage relation; in fact, where he is the first to break his marriage vow, it will prevent him from obtaining a dissolution of the marriage bond.
    4. Same.
    Where he is unable, because of his own misconduct, to procure his release from the marriage relation, the duty attaching to the relation, not to permit her to become a public charge, continues..
    Appeal by the defendant from a judgment of the court of general sessions of the peace held in and for the city and county of New York in favor of the relator, affirming a judgment made by a magistrate of the city of New York convicting said defendant of abandoning his wife, and directing him to pay the sum of eight dollars per week for her support.
    David M. Neuberger, for appellant.
    Adrian T. Kiernan, for respondent,
   BARRETT, J.

Upon the trial a certified copy of the findings of a jury in an action in the supreme court, brought by the defendant to procure a divorce from the complainant, was introduced in evidence. The jury there found that both the defendant and the complainant had been guilty of adultery, the defendant’s guilty acts being prior in point of time to that of the complainant. We do not think that these findings exonerated the defendant in the present proceeding. There can be no doubt of the general rule that the infidelity of the wife justifies the husband in separating from her, and thereupon terminates his obligation to support her. Not only does it preclude her from pledging her husband’s credit for necessaries (Gill v. Read, 5 R. I. 343 ; Hunter v. Boucher, 3 Pick. 290), but it is a defense in proceedings brought in behalf of the public to compel him to support her, or to punish him for failing to do so (People v. Brady, 13 Misc. Rep. 294, 34 N. Y. Supp. 1118; Culley v. Charman, 7 Q. B. Div. 89 ; Rex v. Flintan, 1 Barn. & Adol. 227. We have here, however, no independent evidence of the complainant’s infidelity. The defendant relies solely upon the verdict in the divorce action. Whether the verdict was subsequently sustained or set aside does not appear. We know nothing of any further proceedings in the case. There was no attempt to prove that judgment had been rendered upon the verdict. The findings of a court, or the verdict of a jury, even in an action between the same parties, is not conclusive unless actually followed by judgment. Springer v. Bien, 128 N. Y. 99, 27 N. E. 1076. But the present proceeding is not even between the same parties. The former defendant is, it is true, the present complainant; but the proceeding is brought by the people, on the relation of the commissioner of public charities, to compel the defendant to furnish the support necessary to prevent the the complainant from becoming a public charge. The proceeding is between the people and this defendant. Nothing can stand in the way of such a proceeding save independent evidence of infidelity, or a decree of a court of competent jurisdiction servering the matrimonial tie. The findings of the jury were, it is true, put in without objection. That, however, does not affect their probative value. These findings simply inform us of the opinion of a jury upon undisclosed evidence,—an opinion which was in no wise binding upon those who were not parties to the record. Needham v. Bremner, L. R. 1 C. P. 583; People v. Brady, supra; Gill v. Read, supra. Even if there had been independent proof of the facts found by the jury, the result would be the same. It would then have appeared that the defendant, as well as the complainant, was unfaithful to the marriage relation; in fact, that he was the first to break his marriage vow. That would have prevented him from obtaining a dissolution of the marriage bond. Being unable, because of his own misconduct, to procure his release from the complainant, the duty, attaching to the relation, not to permit her to become a public charge, continues-To be relieved from that duty, he must, as already stated, secure a severance of the tie, or prove facts which would entitle him, if innocent, to such severance.

There was sufficient evidence to support the direction that the defendant pay eight dollars per week, and accordingly the the judgment should be affirmed, with costs.

All concur.  