
    Sleeper v. Sleeper.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    Divorce—Reasonable Alimont.
    Under Code Civil Froc. § 1766, which authorizes the court, on granting a divorce, to compel defendant to provide suitably for the support of plaintiff, “as justice requires, having regard to the circumstances of the respective parties, ” a decree on separation that a husband pay to the wife $1,500, where there are no children, and the whole of his property does not exceed $4,500, is unreasonable.
    Appeal from special term, Erie county.
    Action by Boxanna J. Sleeper for a separation from her husband, Sidney S. Sleeper, on the ground of cruel and inhuman treatment. From a judgment at special term, decreeing a separation, and that plaintiff recover the sum of $1,500 for her support and maintenance, defendant appeals. Judgment modified.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Adelbert Moot, for appellant. W. Thayer, for respondent.
   Macomber, J.

At the time of the decision entered in this case at special term, namely, the 13th day of April, 1889, the plaintiff was 55 and the defendant 56 years of age. They had intermarried on the 12th day of October, 1882; and had lived and cohabited together as husband and wife until the year 1884, when, through cruel and inhuman treatment inflicted by the defendant, the plaintiff was compelled to leave her home, and she remained away until the fall of that year, when, through the persuasions of the defendant, she again began and continued to cohabit with him until the 20th day of February, 1888, when, through like ill treatment, she was obliged to leave his bed and board, and the parties hereto have lived separate and apart since that time. That the acts complained of by the plaintiff were perpetrated by the defendant, and that she was justified in leaving him, is abundantly established by the evidence. The conclusion of the trial court in that regard cannot, as it seems to us, be successfully disputed on this appeal. A serious question, however, is raised touching the terms upon which the court has decreed the separation, in respect to the provisions made for maintenance and support of the wife. The whole of the property of the defendant, as is shown by the evidence and found by the trial judge, does not exceed in value the sum of $4,500. The findings and judgment direct that the defendant pay to the plaintiff the sum of $1,500 for her support and maintenance, in three equal annual payments, the first to be made within one year from the date of the service of the copy of the judgment; and until such payment the defendant was required to furnish to the plaintiff the sum of $20 per month, but such monthly payments, if made, were to apply upon the first installment of $500. This judgment of $1,500 is made a lien upon all of the defendant’s real estate. It appears, therefore, that the decision and judgment have awarded to the plaintiff a money judgment against the defendant in a sum amounting to one third of the defendant’s entire property. Section 1762 of the Code of Civil Procedure, following the provisions of the Revised Statutes, authorizes an action for separation in the following cases: (1) For cruel and inhuman treatment of the plaintiff by the defendant; (2) where such conduct on the part of the defendant towards the plaintiff is such as may render cohabitation unsafe and improper. Section 1766 authorizes the court to compel the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties. The parties to this action have no children; hence it appears that the court has, as it were, partitioned the defendant’s property between him and Ms wife, giving to the latter one third of the same. This statute, as we understand it, did not contemplate such a judgment. The plaintiff was entitled, having established her cause of action, to a separate maintenance, and to a reason- • able support therein; but by the very terms of the act the judgment should have special regard to the circumstances of the respective parties in fixing the amount of such allowance. No case has been cited to us, and we believe that none exists, which would warrant this particular form of judgment. Much latitude is, by statute, necessarily given to the courts in determining what would be a reasonable support, having proper regard to the circumstances of the parties. No rigid and fixed rule can be safely enunciated in. one case which would apply to all others. The cases of Miller v. Miller, 6 Johns. Ch. 91, and Burr v. Burr, 10 Paige, 37, which have never been overruled, but, on the contrary, have afforded an intelligent basis lor many subsequent decisions, are, in principle, at variance with the contention

made by the learned counsel for the respondent. We are of the opinion that in this case, having regard to the circumstances of the parties, a suitable allowance to the plaintiff for her maintenance and support would be the sum of $15 a month from the time of the entry of the judgment herein, and that such payment should continue no longer than during the joint lives of both parties, and that the plaintiff should have a lien for such payments upon the real estate of the defendant. Judgment appealed from modified as indicated in the opinion, and, as modified, affirmed, without costs of this appeal to either party; the judgment to be settled by the justice writing the opinion. All concur.  