
    (75 Hun, 412.)
    BURKE v. BURKE.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Divobce—Evidence.
    The dismissal of a complaint for divorce on the ground of cruel and inhuman treatment will not be disturbed where it appears that frequent quarrels had caused the parties to separate, but it does not appear which party conduced most to bringing about the separation.
    Appeal from special term.
    Action by Maude M. Burke against John J. A. Burke for divorce. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    John P. Bowman, for appellant
    Wm. F. Cogswell, for respondent
   LEWIS, J.

This action was brought for a limited divorce, the plaintiff, in her complaint, charging that the defendant had been guilty of such cruel and inhuman treatment of her and of such conduct as to render it unsafe and improper for her to cohabit with him, and upon the further ground that the défendant had neglected to provide for her. The action was referred to Judge James C. Smith, who, after an extended trial of the issues, made his report, dismissing the plaintiff’s complaint. A judgment was directed for the defendant upon the report of the referee, and from the judgment entered plaintiff brought this appeal.

The parties were married in the city of Eochester on the 22d day of February, 1887, and lived together as husband and wife in that city until the 9th day of May, 1889, when the plaintiff left the defendant’s home, and thereupon brought this action for separation. The cause was tried at great length. The evidence contained in the record covers more than 350 pages of printed matter. The story of the bickerings and altercations of the parties during the two years and over that they lived together, as related by them and their witnesses, tends pretty conclusively to show that their home life was anything but a pleasant one. Their contentions and quarrels seem to have resulted in many instances from very trivial causes, and were exaggerated by the irascible and ungovernable temper of both of the parties. It is difficult to arrive at a satisfactory conclusion, after a careful perusal of the evidence, as to which one conduced most to bring about the final separation. It is very apparent that they failed to appreciate the obligations they assumed to each other when they entered into their marriage vows. The maturer years and larger experience of Dr. Burke should have enabled him to have better controlled his temper and language, and to have induced him to treat his young wife with greater tenderness and respect. The evidence tends to show that his treatment of her was on many occasions severe and unjust. The serious and irritating physical malady from which the doctor was suffering during the time should have admonished the plaintiff that it was her' duty to be kind and attentive to his wants and wishes. He was for a long time very seriously ill, so much so that his life was despaired of. He was exceedingly nervous and irritable. He had been subjected to a severe surgical operation, and had resorted to the usé of anaesthetics to allay his pains and nervousness. All this tends to account in a measure for his language and conduct. There was much evidence tending to show that, while the defendant was in this condition, the plaintiff was irritable, and guilty of conduct and the use of language to her husband which tended to annoy and provoke him. Much of the time the parties lived peaceably with each other, but their altercations and quarrels were quite frequent and very bitter. It is the policy of the law not to grant separations or divorces for slight and trivial causes. When parties have deliberately entered into such relations, it is incumbent upon them to do everything in their power to make the union a happy one; and, while it is not uncommon that at first misunderstandings and bickerings arise, as a rule the parties finally adapt themselves to their new relations, and live comparatively happily with each other. The.testimony does not sustain the charge that the defendant failed to provide for the plaintiff. The learned referee, a man of large experience and great legal learning, after hearing the testimony and seeing the witnesses, concluded that the plaintiff had failed to establish the allegations of her complaint, and made a report dismissing her action. His report was confirmed at the special term, and, after a careful review of all the evidence, we think the referee arrived at the correct conclusion, and we find no reason for disturbing the judgment. The judgment should be affirmed, without costs of the appeal to either party. . All concur.  