
    Catherine Fitzpatrick, Plaintiff, v. Charles J. Fitzpatrick, Defendant.
    (Supreme Court, New York Special Term,
    October, 1897.)
    1. 'Separation —Verbal outrage by words of husband.-
    Judgment, in an action of separation, may be granted in favor of a wife upon the ground of “ cruel and inhuman treatment,” where the husband has been guilty of continuous verbal outrage, consisting, among other things, in denouncing her as a “ cur,” a “ worm ” and a “ devil,” whom he -consigned to “ hell,” and where it also appears that he maliciously impugned her conjugal fidelity.
    
      2. Same,— Counterclaim — Abandonment caused by cruelty of husband.
    The fact that a wife has abandoned her husband is not a counterclaim available to him, where it appears that her abandonment was caused by his misconduct. -
    Action for separation on the ground of cruelty; counterclaim for abandonment.
    Thomas C. O’Sullivan, for plaintiff.
    Henry Schmitt, for defendant.
   Pryor, J.

A judgment of separation does not affect the integrity of the marriage relation, but merely discharges the com- • plaining spouse from the duty of cohabitation.

It is not the law of Hew York that to such judgment in favor of a wife actual or apprehended physical injury is an indispensable , condition. By the terms of the statute cruel and inhuman treat- • ment ” justifies a sentence of separation; and that inhumanity may be evinced and cruelty inflicted by verbal outrage as well as. by bodily abuse is a fact of human experience and of judicial recognition. Lutz v. Lutz, 31 N. Y. St. Repr. 718; Straus v. Straus, 67 Hun, 491, 492; Atherton v. Atherton, 82 id. 179. Whatever the rule elsewhere and at other times, in this jurisdiction at the present day meek submission and patient resignation are not a wife’s sole resource under a brutality that shrinks only from physical violence; but against such misconduct of a husband the courts will afford her commensurate redress.

Upon proof, therefore, of such angry, contumelious and degrading reproaches by a husband, applied maliciously and without provocation, as makes his presence an intolerable grievance, destructive of the happiness that is the end of the matrimonial association, a wife is entitled, without sacrifice of her right to support, to be relieved of the humiliating and tormenting companionship.

Upon this principle judgment is awarded to the plaintiff.

By a preponderance of credible testimony it is established that repeatedly and in wrath the defendant addressed .profane'and opprobrious language to the plaintiff — denouncing her as a “ cur,” a worm ” and a “ devil ” whom he consigned to hell,” and that under circumstances of peculiar atrocity, he maliciously and unjustifiably impugned her conjugal fidelity. On the trial, indeed, he denied that he ever accused her chastity, and professed confidence in her virtue; but with cynical insincerity, in face of an answrer plainly imputing to her habitual wantonness and systematic immorality. Holmes v. Jones, 121 N. Y. 461, 466; Cornwall v. Cornwall, 30 Hun, 573, 574.

Were the instances of misbehavior casual and exceptional they might claim some indulgence.on the score of infirmity of temper; but being persistent and characteristic, they stamp the conduct of the defendant toward the plaintiff with a uniform tenor of deliberate cruelty and inhumanity, and appear, as by implication he confesses, to have been directed to the end of driving her to a separation.

Indeed, his vindictiveness did not cease with her departure; but after her escape he subjected her to the infamy of a public advertisement as a recreant to marital duty, to whom no tradesman might safely supply the n'ecessaries of life.

All these indignities the defendant inflicted upon a woman whom he knew to be of delicate health ■—• upon a wife who requited his cruelties with angelic gentleness^ and to whose spotless purity he is constrained to bear reluctant testimony.

Were bodily harm, as the effect of defendant's maltreatment, requisite to the plaintiff’s case, it is abundantly apparent in the evidence.

' The defense of condonation, were it pleaded, is manifestly not substantiated by proof. Reynolds v. Reynolds, 4 Abb. Ct. App. Dec. 35.

Nor, since the, abandonment of which the defendant complains was caused by his own misconduct, is it a valid ground of counterclaim. Waltermire v. Waltermire, 110 N. Y. 183, 187.

Judgment for plaintiff.  