
    The People of the State of New York, Respondent, v. Joseph La Scala, Appellant.
    Second Department,
    June 7, 1912.
    Husband and wife — disorderly person — abandonment — evidence.
    Proceeding to adjudge a husband a disorderly person in having abandoned his wife and child.. Evidence examined, and held, insufficient to sustain a finding that the husband neglected to support his wife and child, or that they were in danger of becoming a burden upon the public.
    Carr, J., dissented.
    Appeal by the defendant, Joseph La Scala, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 27th day of October, 1911.
    
      Henry Siegrist, for the appellant.
    
      Herman Stiefel [Archibald R. Watson with him on' the brief], for the respondent.
   Rich, J.:

.. This is an appeal from an order of the County Court of Kings county, affirming an order made by the Second. Division of the Domestic Relations Court of the city of New York, adjudging the defendant to be a disorderly person in having abandoned his wife and child without adequate support and leaving them in danger of becoming burdens upon the public. The proceeding was brought under the provisions of section 685 of the charter of the city of New York (Laws of 1901, chap. 466), under which actual abandonment is necessary to constitute the offense. The deposition of defendant’s wife, upon which the warrant issued, charges actual abandonment to have taken place on May 25, 1911. The evidence shows that the defendant and his wife had lived separate and apart from each other from October 26,1910. It. is not shown why the parties ceased to live together, or which one was responsible for the separa-tion. On February 21, 1911, a similar proceeding was dismissed by a city magistrate, “No abandonment shown.” This must be given the effect of an adjudication that the defendant was not legally chargeable and that his conduct did not constitute an actual abandonment. They did not live together at any time after such adjudication, nor did any change occur in their relations from the time of the original separation down to the day on which the defendant was found guilty of the offense of actual abandonment. Defendant’s wife testified that on May twenty-fifth, the date of the alleged abandonment, she said to him: “ I am ready, I want to come to you, I want to see you.' * * * Listen, Joe, I want to come with you, * * * the baby is always calling for papa and she don’t see papa; ” in response to which defendant said, “ Go on, get away from here, don’t bother me — if you don’t go away from here, I will kick you in the face,” and that he did then spit in her face. The defendant denied this testimony, and testified without contradiction that at the hearing in the prior proceeding he offered to live with her as husband and wife; that such offer was made by his attorney, and the defendant made 'the same offer on the hearing in this proceeding. It is also proven that from the time of the separation the complainant has been supported by her parents, with whom she has resided.

The evidence is wholly insufficient to sustain the -conviction. (People v. Crouse, 86 App. Div. 352; People ex rel. Demos v. Demos, 115 id. 410; People v. Neyer, 79 N. Y. Supp. 367.) I concur in the conclusion reached by Mr. Justice Garretson at Special Term, in considering the appellant’s application for a certificate of reasonable doubt, that upon the evidence there was no abandonment by the appellant of his wife and child; that the evidence' does not warrant or sustain a finding that the appellant neglected or refused to properly support his wife and child or that they were in danger of becoming burdens upon the public.

The judgment must be reversed and defendant discharged.

Jenks, P. J., Thomas and Woodward, JJ., concurred; Carr, J., dissented.

Judgment of the County Court of Kings county reversed, and defendant discharged.  