
    Mary Atwater vs. John G. Atwater.
    The Supreme Court has no authority to decree a separation between husband and -wife, or to make an order for the support and maintenance of the wife by her husband, except that specially conferred by the statute. (2 5. S. hlh <d. p. 237, § 55.) And the statute does not authorize a bill or complaint to be filed by a wife for a support and maintenance by her husband, as a distinct substantive relief.
    That relief can only be granted when a separation is asked; and the statute, in terms, states three causes only for which such separation may be adjudged, viz: 1. The cruel and inhuman treatment by the husband of his wife; 2. Such conduct on the part of the husband, towards his wife, as may render it unsafe and improper for her to cohabit with him; 3. The abandonment of the wife by the husband, and his refusal or neglect to provide for her.
    Where the plaintiff, in her complaint, alleges facts bringing her case within each of these three causes, but the referee finds that she has entirely failed to establish the first and second, and as to the third he finds that there has been no abandonment of the plaintiff, by the defendant, but that he has refused and neglected to provide for her, the plaintiff is not entitled to a judgment for a separation; abandonment and refusal or neglect, being both necessary to justify such a judgment.
    APPEAL by the defendant from a judgment entered upon the report of a referee. The action was brought by the plaintiff to obtain a limited divorce. The amended complaint alleged acts of the defendant amounting to cruel and inhuman treatment of the plaintiff; also such acts as rendered it unsafe and improper for her to cohabit with him; also abandonment and refusal to support the plaintiff, as the three grounds for such a judgment.
    The answer denied the acts alleged, and set up as a defense misconduct on the part of the plaintiff.
    The issues were referred to, and tried before, a referee, who made his report, by which he found every issue of fact made by the pleadings, and upon which the statute authorizes a decree for a limited divorce, (see 3 R. 8. 237, 5th ed.,) in favor of the defendant, and by which he found, as a conclusion of law, that the plaintiff was not entitled ' to the judgment prayed for.
    The referee also found as facts, that the age of the plaintiff was sixty-seven years, and the age of the defendant fifty-eight; that at the time of the commencement of this action, the defendant was the owner of property of the value of $20,000 and upwards; that about the year 1858 the plaintiff and defendant ceased to cohabit together, although they resided or boarded in the same house for several years thereafter; that they entertain bitter and hostile feelings towards each other, and their residing in the same house would be cause of unhappiness to both; that the defendant has refused and neglected to provide for the plaintiff.
    The referee found, as one of his conclusions of law, “ that this is a suitable and proper case for the support and maintenance of the plaintiff, by the defendant;” and thereupon directed “judgment to be entered that the defendant be ordered to pay the plaintiff fifty dollars per month for the support and maintenance of the plaintiff, to 'commence . with the time of the commencement of this action, less any amount which the defendant has paid the plaintiff for alimony, pursuant to any order of the court, and that the defendant pay to the plaintiff" her costs and disbursements in this action.”
    On the 12th of November, 1868, the plaintiff entered a judgment, by which it was ordered that the plaintiff recover of the defendant $1760, (being the amount of the $50 per month, from the commencement of the action to October 29, 1868, less alimony paid during the progress of the action,) and her costs, amounting, in all, to $2212.66; ' also that the defendant pay the plaintiff $50 per month, monthly, from October 29,. 1868, until the further order. of the court.
    
      Britton & Ely, for the appellant.
    
      E. L. Sanderson, for the respondent.
   By the Court, Lott, P. J.

The Revised Statutes provide that a separation from bed and board forever, or for a limited time, may be decreed on the complaint of a married woman, subject to certain qualifications not necessary to be here stated, for the following causes:

1st. The cruel and inhuman treatment by the husband, of his wife.

2d. Such conduct on the part of the husband towards Ms wife, as may render it unsafe and improper for her to cohabit with him.

3d. The abandonment of the wife by the husband, and Ms refusal or neglect to provide for her. (2 R. S. 146, &c., §§ 50, 51.)

The complaint “ shall specify particularly the nature and circumstances of the complaint on which she relies, and shall set forth times and places with reasonable certainty and “ the defendant may be permitted to prove, in Ms justification, the ill conduct of the complainant, and on establishing such defense to the satisfaction of the court, the bill (complaint) shall be dismissed.”

It is then, after providing that “ upon decreeing a separation, the court may make such further decree as the nature and circumstances of the case may require, and may make such order and decree for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper,” (§ 54,) further provided, that “ although a decree for separation from bed and board be not made, the court may make such order or decree for the support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as the nature of the case renders suitable and proper.” (§ 55.)

The complaint in this case sets forth facts and circumstances showing the plaintiff’s right to a judgment for separation on each of the three grounds or causes above specified, and the defendant, by his answer, in addition to the denial or explanation of the material facts stated by the plaintiff, sets up in justification of his acts, ill conduct on her part.

The issues raised by the pleadings were referred to a referee to hear and determine, and he, by his decision, has found: 1st. That there has been no cruel or inhuman treatment by the defendant, of the plaintiff, as charged in the complaint. 2d. That there has not been such conduct on the part of the defendant towards the plaintiff, as may render it unsafe or improper for her to cohabit with him. ■ 3d. That the defendant has not abandoned the plaintiff, as charged in the complaint. 4th. That the defendant has refused and neglected to provide for the plaintiff, as charged in the complaint. 5th. That the plaintiff has not been guilty of ill conduct, as charged in the answer. He then, after stating the ages of the parties, and the value of the property owned by the defendant at the time of the commencement of this action, to have been twenty thous- and dollars, and upwards, finds in addition, “ that from about the year 1858, the plaintiff and defendant ceased to cohabit with each other, although they resided or boarded in the same house for several years thereafter; that they both [each] entertain towards the other bitter and hostile feelings, and their residing in the same house would be the cause of unhappiness on the part of both.”

Upon these facts so found by him, he finds and decides as conclusions of law: 1st. That the plaintiff is not entitled to a judgment or decree for separation from bed and board from the defendant. 2d. That this is a suitable case for a judgment or decree for the support and maintenance of the plaintiff by the defendant. 3d. That judgment be entered ordering the defendant to pay the plaintiff fifty dollars a month for such support and maintenance, until the further order of this court, to commence with the time of the commencement of this action, after deducting the moneys paid by him as alimony under former orders of the court. 4th. That the defendant pay to the plaintiff her costs and disbursements in this action.

Thereupon judgment was entered, ordering the payment by the defendant, to the plaintiff, of the sums directed to be paid by that decision for her support and maintenance, and for her costs and disbursements in this action.

The defendant has excepted to so much of the findings of the referee as finds, that this is a suitable and proper case for a judgment or decree for the support and maintenance of the plaintiff by the defendantand also to his conclusion and direction that judgment be entered ordering payments to be made by him for the plaintiff’s support and maintenance, and her costs and disbursements in the action, in accordance with the said decision..

The exceptions present the question, whether it was competent for the referee or the court, under section 55, above quoted, to make an order or judgment fo.r the support and maintenance of the plaintiff by her husband, when she failed to establish either of the grounds or causes required by the statute to authorize a judgment for separation from bed and board; and after a careful examination and consideration of the matter, I have come to the conclusion that it is not.

This court has no authority to decree such a separation, or to direct such support and maintenance, except that ■ specifically conferred by the provisions of the law above set forth. They do not authorize a bill or complaint to be filed by a wife for a support and maintenance by her husband, as a distinct substantive relief. That relief can only be granted when a separation is asked, and the statute in terms states three causes only for which such separation may be adjudged, and makes it necessary for the plaintiff, in her complaint, to specify particularly the nature and circumstances on which she relies to establish the cause or causes on which her claim is founded..

In this case the plaintiff has alleged facts bringing her case within each of these three causes, and the referee has found that she has entirely failed to establish the first and secondhand as to the third, he finds that there has been no abandonment of the plaintiff by the defendant, but that he had refused and neglected to provide for her. Such abandonment and refusal or neglect are both necessary to justify a judgment for a separation, and- it was properly decided that the plaintiff was not entitled to such relief.

Assuming that conclusion to be correct, it appears to me that if such facts and circumstances only had been . alleged in the complaint as show a refusal or neglect by the defendant to provide for the plaintiff, but not sutficient to establish an abandonment, they would not have constituted a cause of action, and the complaint wbuld have been dismissed on demurrer thereto, upon that ground.

The effect of the referee’s decision is, however, to give the plaintiff relief, after a trial upon such facts alone. A construction of the statute that leads to such a result, cannot be proper. We are to construe all of its-provisions in connection, and on the application of that rule, section 55 (supra) can have full effect, when it shall appear that one or more of the "causes of separation has been proven, but that from the fact of condonation or other matter of defense, it would be improper for the court to decree or adjudge her such relief, and yet a judgment for support and maintenance might, in view of all the facts proven, be equitable and proper.

The case of P. v. P., (24 How. Prac. Rep. p. 197,) appears to have been decided on that principle, or at least is consistent with it. That was an action for a limited divorce, and the learned justice, in his- opinion, states that “the charge of cruel treatment, and on which this action brought for separation was predicated, was fully made out by proof on the trial of the cause,” and then, after saying that the. defense of recrimination was not established, he adds: “ The defense of condonation, I am inclined to think, was made out;’’ and he states his reasons for that conclusion. He also, after referring to the history of the parties, remarks that, as a man of wealth, and having reference to his habits and those of his .wife, it may be added, a man of great wealth, he has not provided a suitable and proper maintenance of the wife and her children.” This statement shows that the plaintiff, but for her condonation of the cause of action, would have been entitled to a judgment of separation, and that failing in obtaining that relief, her husband’s former neglect to provide for her properly, in connection with the cruel treatment, of which he was found guilty, made it a proper ease for the court to decree a reasonable provision for her future support and maintenance.

So, too, if the 55th section be read in immediate connection with the 51st, setting forth the three causes of separation, they may be construed as authorizing, in case any of these be established, either a judgment for separation with a suitable support and maintenance, or for such support and maintenance alone, or, as briefly and well expressed by the defendant’s counsel in his points, “the fact or facts provided by the statutes being found to exist, separation may be decreed, with support, or a support without a decree of separation.”

The three grounds for separation above specified, were substantially contained and provided for by the revised laws of 1813, (vol. 2, p. 200, § 11,) and upon either of them appearing to the court, a decree for a separation, or for a suitable support and maintenance, might be made. The subdivision of the matters contained in that section, by the Revised Statutes, into several sections, does not require a different construction to be given to the whole statute as an entirety.

The case of Turrel v. Turrel, (2 John. Ch. 391,) cited and relied on by the plaintiff’s counsel to support the present judgment, was under the statute of 1813, and the chancellor, in making his decree that a legacy given to the plain.tiff by her father’s will, should be appropriated to her separate maintenance and support, evidently considered it to be necessary to entitle her to the relief so given, that the acts alleged ás a sufficient ground for separation in her bill of complaint should be established. He says, in his opinion, after referring to the acts of ill usage by the defendant, of his wife, and his neglect to provide for her, “ the statute declares that if it shall appear to the court that such a charge as that contained in the hill is true, it shall be lawful, whether the court shall decree a separation from bed and board or not, to make such order and decree for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as the nature of the case and the circumstances of the parties may render suitable and proper.” He then adds: “ Under the circumstances of this case, I deem it just and proper that the legacy given to the wife by her father should be appropriated for her separate maintenance and support.”

[Kings General Term,

December 14, 1868.

I will add in this connection, that the justice making the decision in the case of P. v. P. (supra,) appears by the tenor of his remarks to have been of the opinion that even if acts involving ill usage are established so as to justify a separation, yet such a judgment can be refused when the court is satisfied that there is not any danger thereof in the future, but that it might nevertheless be proper to provide for a support and maintenance.

My conclusion, therefore, after a careful consideration of the question, is that the judgment in favor of the plaintiff' should be reversed, without costs of the appeal, and that a judgment should, instead thereof, be entered in favor of the defendant, and dismissing the plaintiff’s complaint, without costs.

Zott, Gilbert, J. F. Barnard and Happen, Justices.]  