
    Hattie E. Bucki, Resp’t, v. Charles L. Bucki, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    Appeal—Conflicting evidence.
    A finding, on conflicting evidence, will not be disturbed on appeal.
    Appeal faom a judgment, granting to plaintiff a separation from defendant, and alimony.
    
      Delos McCurdy, for app’lt; Austin G. Fox, for resp’t.
   Parker, J.

The trial court reached the conclusion that the substantial facts alleged in the complaint were proved on the trial. On a former appeal this court held that the allegations in the complaint, if supported by evidence on the trial, would entitle plaintiff to the judgment prayed for. 70 Hun, 598; 54 St. Rep. 287. The question on this appeal, therefore, relates to the finding of fact made. Bearing that subject of inquiry in mind, we have attentively examined the evidence, with the result that we are persuaded that, under the rules which should govern this court in reviewing determinations of fact, the decision of the trial court must stand. The judgment should be affirmed with costs.

Follett, J., concurs.

Van Britnt, P. J.

I cannot concur in the affirmance of the judgment in this action. It is apparent that much of the evidence in this case was made under the advice of counsel, and that acts of violence were eagerly looked for under such advice, and gleefully welcomed. Even under these circumstances, only one act of violence could be established or was claimed, and many of the quarrels which were constantly taking place between these parties were the outcome of legal advice to the plaintiff. It is undoubtedly true that the defendant acted in many instances with great meanness, and many of his acts were of a despicable character. But the plaintiff is very far from having been free from endeavoring to incite such performances upon the part of the defendant. Unless we are to add another ground of divorce to those contained in the statute, namely, that of incompatibility of temper, I can find no ground for a separation in the case at bar. Simply because two people will lead a cat and dog life together, that fact does not seem to be recognized by the statutes as a ground for separation. Having made their bed, they must lie upon it. I do not think it is the province of the court to indulge in judicial legislation to the extent which would be required by the granting of a decree in this case, in order to enable the plaintiff to live at the expense of the defendant without the performance of any of those duties upon which his obligation to support her now depends.

The judgment should be reversed, and a new trial ordered.  