
    Annie L. McCahill, Resp’t, v Thomas J. McCahill, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed September 11, 1893.)
    
    1. Divorce—Cruel treatment.
    In an action for divorce on the ground of cruel treatment the only evidence tending to support the action was as to an alleged assault upon plaintiff by the 'son of the parties by direction of defendant. This was denied by defendant and the son, who testified that plaintiff had thrown a basin of water on defendant, and fell while the son was taking the basin from her. Plaintiff admitted throwing the water. Defendant was a cripple, and physically incapable of much violence. Held, that the occurrence was insufficient to justify a decree of separation.
    2. Same—Alimony.
    In such a case, where the defendant had already made a gift of their house to plaintiff, he should not be compelled to make provision for a separate support for her, although the parties may not live together hereafter.
    Appeal from judgment granting to plaintiff a separation from her husband, the defendant, and directing that he pay for her support and maintenance the sum of $100 a month, and if the children choose to reside with her, increasing the alimony to $300 a month during the minority of the children.
    
      H. T. Dykman, for app’lt; Martin J. Keogh, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term granting the plaintiff a separation and alimony. The appeal involves only questions of fact. We are conscious that we should reverse thé determination of such questions by the trial court with much hesitation and only where it seems to us that the clear weight of testimony is against the findings made.

The parties were married in 1876 and lived together for over fifteen years. The complaint alleged various specific occasions on which the defendant assaulted her and also periods during which his violence was habitual. It further alleged that the defendant failed to properly provide for his family and that at times he called the plaintiff names. The learned trial judge found that the defendant properly supported his family and found but one occurrence of violence on the part of the defendant, upon which occurrence the decree was granted. The case depends principally on the testimony of the parties. The occurrence upon which the decision below is based is an alleged assault by the son of the parties on the plaintiff, his mother, by direction of the defendant. The defendant and his son both deny the assault. The learned trial judge found corroboration of the plaintiff’s stoiy in the fact that the servants saw some blood upon the plaintiff’s face. That there was an altercation at this time is conceded. The defendant and his son say that the plaintiff threw a basin of water on the defendant, and that while the son was trying to take the basin from the mother she fell. The plaintiff, while she says that the son struck her, admits that she may have thrown the basin of water. We think this transaction is by no means sufficiently clear to justify a separation. The defendant has been for years a cripple, suffering from locomotor ataxia and physically incapable of,much violence. The court found against the plaintiff on all the other allegations of maltreatment. She could not, therefore, have impressed the trial judge very strongly as to her accuracy of statement. At the most, this affair seems to have been a quarrel in which the wife was fairly a party combatant. The defendant himself certainly used no violence, and both he and his son deny that he directed the son to do so. It seems to us unfair on this occurrence to stamp the defendant guilty of cruel or inhuman conduct

Though the parties may not live together hereafter, we do not think this a proper case to compel the defendant to make provision for the separate support of the plaintiff. She has received from her husband as a gift the home in which they have heretofore lived. The decree made in another action declaring such gift a trust for the husband and children we have reversed. If the plaintiff will continue to live apart from her husband and children voluntarily and without sufficient cause, we think this gift is sufficient provision for her.

Judgment appealed from should be reversed and new trial ordered, costs to abide event.

Pratt, J., concurs.  