
    Schleifer v. Schleifer.
    
      (Supreme Court, General Term, Second Department.
    
    July 22, 1892.)
    Divorce a Mensa—Cruelty—Abandonment.
    Where, on a separation for cruel treatment, the husband agrees to pay the wife-a certain allowance, and she thereafter, in ignorance of its contents, believing it to-be a receipt, signs a general release to her husband, whereupon he refuses to pay any further alimony, it is not necessary for her to ask her husband to go back and live with her, to entitle her to maintain an action for limited divorce, her departure from her husband’s house on account of ill usage not being an abandonment by her.
    
      Appeal from special term, Kings county.
    Action by Agnes Schleifer against Henry Schleifer. From a judgment granting plaintiff a separation from the bed and board of defendant, and awarding her alimony and costs, defendant appeals.
    Affirmed.
    Argued before Barnard, P. J., and Dykman and Cullen, JJ.
    
      George H. Brúee, for appellant. M. L. Towns, for respondent.
   Barnard, P. J.

The parties were married in 1884. In August, 1888, they separated by mutual agreement, and, by the terms thereof, the defendant was to pay the plaintiff $28 per month. In January, 1889, the parties made an attempt to live together; but it was prevented by the cruel and violent "treatment of the wife by her husband. He flogged her, kickéd her, and locked her up. The alimony was paid tip to the 6th of October, 1890, and probably for the month of November, 1890. Onthe 13th of November, 1890, $28 was paid, and a paper was signed by the plaintiff. This was a general release. The wife supposed it was a receipt for the $28 paid. In this she is supported by the witness Geisseman, who testified that nothing was said about a release from alimony, but that the transaction was a discontinuance of suits existing between the parties. The trial court has found that the release was not understood by plaintiff, and that she signed it in ignorance of its contents. The proof of cruelty and violence upon the part of defendant before the separation was abundant. The plaintiff has not, since the first separation in January, 1889, requested the defendant to live with her. The separation was based upon cruel treatment, and it was not necessary or proper that the plaintiff should ask her husband to go back and live with her, before she could maintain an action for a limited divorce, when the alimony agreed upon was not paid. It was not an abandonment of defendant by plaintiff, because she left her husband’s house in January, 1889. She was compelled to do so by ill usage. The proof of the financial standing of the defendant justifies the alimony given, which is but $30 per month. Besides this, the proof tends to show that the defendant had received from his wife considerable money before the separation.

The judgment should be affirmed, with costs. All concur.  