
    TAYLOR v. TAYLOR.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    Divorce—Cruelty—Provocation.
    A divorce on the ground of cruel and inhuman treatment is properly denied, though defendant treated plaintiff harshly, where it appears that plaintiff persisted in associating with a man to whom defendant objected, and sometimes visited him at his room.
    Appeal from judgment on report of referee.
    Action by Annie Taylor against Stephen Taylor for divorce from bed and board. There was a judgment in favor of defendant, and plaintiff appeals.
    Affirmed.
    The following is the report of Barnwell B. Heyward, Esq., the referee before whom the case was tried:
    The whole issue in the above-entitled action having been referred to the undersigned as sole referee, to hear and determine the same, by an order of this court made on the 3d day of March, 1893, now, after hearing the respective parties thereto, and taking their testimony, and that of the several witnesses in their behalf, and after due deliberation thereupon, the following report is respectfully submitted: .
    I find as facts: First. That the plaintiff and defendant were married on the 28th day of March, 1872, in the county of Lancaster, England, and have been residing at Bath, Rensselaer county, N. Y.; for several years past, That they have five children,—Ida, aged 20; Annie, aged 17; Ada, aged 14; John A., aged 11; and Nellie, aged 9. That together they own a home, and, until the occurrence hereinafter set forth, lived together with content between themselves - and with the respect of their neighbors. That both have high tempers and strong wills. Second. That on or about February 1, 1890, a young man named Ledley Walker came to board in the family, with the consent of both plaintiff and defendant, and about three weeks thereafter defendant came home and found one of his daughters, a young woman, in her nightdress, in Walker’s room, and the plaintiff sitting in the adjoining room. Defendant protested, and requested that Walker be sent away. Walker went away, but returned in a few days, with the consent of the defendant. Third. That subsequent to the occurrence above set forth the defendant’s suspicions were further excited by report unfavorable to> Walker’s character, and on April 10, 1890, at his request, he induced the plaintiff to go with him to the home of one John Patterson, a mutual friend, in order that he, said/Patterson, might convince the plaintiff that Walker was not a proper person to remain in their family. At Patterson’s plaintiff and defendant engaged in a violent quarrel, in which plaintiff defended Walker, and defendant pushed her twice so violently that she fell on her knees; at the same time used profane and abusive language towards her. Fourth. That subsequently, and down to July 8, 1890, plaintiff and defendant "continued to quarrel from time to time, about Walker, and on several occasions defendant pushed plaintiff, and called her a “bitch” and “whore.” Fifth. That on July 8, 1890, plaintiff and defendant quarreled about Walker, while they were in bed, and defendant struck plaintiff in the face violently, causing blood to flow, and also used profane and abusive language towards her; that plaintiff thereupon caused defendant to be arrested for said assault, and he pleaded guilty to the charge, and was bound over to keep the peace. Sixth. That on or about September 17, 1892, defendant was informed that plaintiff had gone out in the country to visit Walker, and had instructed her children not to inform defendant of the fact. He thereupon accused plaintiff, and asked her if she intended to keep up her intercourse with Walker, to which she replied that she would. Defendant thereupon cursed her, called her names, and ordered her out of the house. Upon plaintiff’s refusal to leave, defendant gathered her clothes, put them in her trunk, and put the trunk out of the house; and also pushed her out of doors. Seventh. That since September 17, 1892, plaintiff has not lived with defendant, but has constantly visited at their house, and assisted in caring for the family. Eighth. That the conduct of defendant towards plaintiff has been rough and. violent, and his language to her has been coarse and vulgar, but such conduct has not been cruel or inhuman, and plaintiff has not suffered any serious injury therefrom. Ninth. That the acts of misconduct of defendant towards plaintiff were perpetrated during quarrels between them concerning Walker, and on each occasion plaintiff was irritating and provoking, defending said Walker, and refusing to cease her intimacy with him. Tenth. That from April, 1890, to November, 1890, the period during which the most of the quarrels occurred, plaintiff visited said Walker repeatedly, during the day and evenings, at his place of business, and caused scandal. That she knew that such conduct was offensive to defendant, and persisted in it in spite of their quarrels about it. Eleventh. That plaintiff visited said Walker, and has remained with him in his room alone as late as 11 o’clock in the evening, and repeatedly kissed him and was kissed by him. Twelfth. That between November, 1890, and September, 1892, Walker was absent from the neighborhood, and during that period there were no quarrels between plaintiff and defendant; that he returned about September —, 1892, and shortly thereafter plaintiff resumed her visits to him; that defendant then sent her away, as set forth in the sixth finding of this report. Thirteenth. That the conduct of plaintiff towards said Walker during the period included in the complaint was highly improper and reprehensible, and that her conduct towards defendant in defending such behavior led to the excesses complained of. Fourteenth. That the acts of defendant complained of by plaintiff, prior to July, 1890, were condoned by her subsequent cohabitation with him, and that no acts have been committed by defendant since that time as are sufficient to revive such causes of complaint. Fifteenth. That the ejection of plaintiff from" their home by defendant was justified by her refusal to cease her intimacy with Walker at defendant’s request, and her resumption and continuance thereof.
    
      I find as conclusions of law: First. That defendant has not been guilty of cruel and inhuman treatment towards plaintiff as charged in the complaint. Second. That plaintiff was guilty of such misconduct upon the .occasions set forth in the complaint as justified defendant’s acts. Third. That plaintiff has condoned the acts of defendant, set forth -in the complaint as committed prior to September, 1892. Fourth. That defendant is .entitled to a dismissal of the complaint.
    The evidence excluded at folio 67 was on redirect examination of the daughter of the parties, and is as follows:
    Q. Did your father, in the presence of your mother, In spite of her entreaties, unmercifully beat you? (Objected to as incompetent and immaterial, not embraced in the issues, and calling for a conclusion. Sustained. Exception.) Q. Did your father, in the presence of your mother, in spite of her entreaties, beat you? (Objected to on same grounds. Sustained. Exception.) Q. Did your father, in the presence of your mother, she at the time asking him not to, beat you? (Same objection. Same ruling. Exception.)
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Mills & Bridge, for appellant.
    Stedman, Thompson & Andrews, (Arthur L. Andrews, of counsel,) for respondent.
   HERRICK, J.

I have examined the findings of the referee, and the evidence in this case, and his findings seem to be abundantly supported by the evidence. I am inclined to think that an error was committed by him in refusing to admit the evidence offered, (folio 67 in the case,) but, in view of all the testimony, it seems to me that, if such evidence had been admitted, it ought not to change the result. The behavior of the plaintiff was such as to provoke harsh treatment of her by the defendant. The judgment should be affirmed, with costs. All concur.  