
    Esther C. Rose, Resp’t, v. Warren H. Rose, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Divorce—When facts in justification may be proved.
    In an action for a separation upon the ground of cruel and inhuman treatment the defendant has a right to prove any facts in justification of any acts of violence claimed to be committed towards the plaintiff.
    2. Same—When evidence of ground of objection to visit of stranger:
    ADMISSIBLE.
    Where the evidence showed that the defendant sought to prevent the visits to his house of a person who was obnoxious to him, and that in this respect his wife and his daughter wilfully and persistently disobeyed his injunctions, it was claimed that he had no right to prove that he had reasonable grounds for his prohibition. Meld, that the defendant had. a right to show that his objections did not arise because of caprice or with out just cause, but were based upon good grounds.
    S. Same—When proof of circumstances attending conduct admissible.
    When a husband is called upon to answer for his conduct^ towards his. children he is entitled to prove all the circumstances attending this conduct and the reasons for it, that he may justify it.
    4. Same—Limitation of duty of husband.
    A husband is not bound to keep under his roof a wife, no matter what her conduct maybe, nor is he bound to leave his house or submit to her conduct whatever it may be. e
    
      Appeal from judgment entered in an action for limited divorce, upon the ground of alleged cruel and inhuman treatment.
    
      G. H. Hoffman, for app’lt; Geo. E. Horn, for resp’t.
   Van Brunt, P. J.

—It will be necessary to reverse this judgment upon the ground of errors in the rejection of testimony. The learned court below seems to have been of the opinion that the defendant had no right to prove any facts in justification of any acts of violence which it might be •claimed he had committed towards the plaintiff. In other words that the wife might, by her own misconduct, provoke ill treatment upon the part of the husband, and then claim rights because of such ill treatment which had been caused entirely by her own provocation.

We know of no such rule of law. It has always been deemed important for the court to know what has been the conduct of the wife towards the husband, as well as what his conduct has been towards her, in deciding the question whether it is a proper case for a decree of separation. Hopper v. Hopper, 11 Paige, 46. And this seems to be a self evident proposition, because the question whether treatment is cruel and inhuman, and is of such a character as to render it unsafe for the- wife to live with the husband, depends very largely upon the circumstances which gave rise to such ill treatment. If it should appear that had the wife performed her duties towards her husband, she would have suffered no ill treatment at his hands, it is difficult to understand upon what principle a court of equity could grant her relief.

The evidence in this case shows that the defendant sought to prevent the visits to his house of a person who was obnoxious to him, and that in this respect his wife and his daughter seem willfully and persistently to have disobeyed his injunction. Although it is conceded upon the part of the respondent that the husband has the right to dictate who shall visit at his house, yet it is claimed that he has no right to prove upon aotrial where he is accused of cruel and inhuman treatment" arising apparently out of the disregard of his injunctions, that he had reasonable grounds for his prohibition, and therefore it is sought to justify the rulings made by the court that what his reasons were was entirely immaterial.

In this we think there was a fatal error. _ The defendant had a right to show that his objections did not arise because of caprice or without just cause, but that in directing his family not to receive the visits of the objectionable visitor, he had good grounds for his objection.

In the case at bar, when asked for the reasons which he assigned to his wife and daughter for his refusal, this evidence was objected to and excluded.

It was claimed upon the part of the plaintiff that the concluct of the defendant toward his daughter formed part of the cruel and inhuman treatment, in respect to which there is a finding made by the learned court, and when the defendant sought to prove the cause for this treatment, his mouth was shut under an objection, and he was prevented from showing circumstances which, if true, certainly justified upon his part the severest of discipline towards this child. It seems to be assumed that the conduct of the wife and child may be of any character that they choose to make it, and the husband is bound to submit. This, however, does not seem to be the rule of law, nor is it the rule-of good morals, and a husband when called upon to answer for his conduct towards his children is entitled to all the circumstances attending this conduct and the reasons for it, in order that he may justify it. In the case at bar, the defendant refused this right, both in respect to the plaintiff and to his child. A husband is not bound to keep under his roof a wife, no matter what her conduct may be, nor is-he bound to- leave his house or submit to her conduct, whatever it may be.

In the case at bar, it seems to us that a very different-aspect might have been put upon the evidence had the defendant been allowed to prove the conduct of his wife and daughter towards him, and his reasons for his prohibitions-against their visitors, which prohibitions seem to have been totally ignored both by the wife and daughter.

It is not necessary, in view of the conclusion at which we have arrived upon the main body of the case, to consider the question in regard to the amount of alimony which has-been awarded in this case, but upon an examination of the-record, it would appear that the court had been more liberal than the evidence in the case justified.

The judgment should be reversed and a new trial ordered,, with costs to appellant, to abide the final event.

Beady and Daniels, JJ., concur.  