
    The People of the State of New York ex rel. Margaret Demos Respondent, v. Emanuel Demos, Appellant.
    First Department,
    November 5, 1906.
    tirime — abandonment of wife — conviction reversed.
    To constitute criminal abandonment of wife or child under sections 685 and 686 of the charter of Greater New York there must be a willful desertion without justification and an-intent not to return, together with proof showing that the wife or children are likely to become a charge upon the public.'
    The statute is criminal in its nature and not designed to settle matrimonial differences,. or as a means of obtaining a separation; which relief should be sought not in the Magistrate’s Court, but in the proper tribunal.
    When the proof shows that the complainant refused to leave her employment and live in her husband’s lodging when requested to do so by him, and there is no proof that she is in danger of becoming a public charge, a conviction is not warrantéd. .
    Appeal by the defendant, Emanuel Demos, from an order of the Court of General Sessions of the Peace in and for the city and county of Hew York, bearing date the 15th day of January, 1906, and entered in the office of the clerk of said court, affirming a judgment of the'City Magistrate’s Court of the city of Hew York, convicting the defendant of being a disorderly person in having abandoned Ms wife and leaving her in danger of becoming a burden upon the public.
    
      Henry W. Sykes, for the appellant.
    
      Michael J. Kelly, for the respondent.
   Houghton, J.:

The defendant was convicted in a Magistrate’s Court of being a disorderly person in having actually abandoned his wife without adequate support, thereby rendering her liable to become a burden upon the public; and that conviction was affirmed by the Court of General Sessions of the Peace of the city and county of Hew York.

The conviction was had under the provisions of sections 685. and 686 of the Greater Hew York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which provide that every person in such city who ■ actually abandons his wife or children without adequate support, or leaves them in danger of becoming a burden upon the public, may be arrested and brought before a city magistrate, and upon conviction shall be required to pay a reasonable sum weekly for their support, for the space of one year, to the commissioner of public charities, or in default of sufficient surety for the payment thereof may be committed.

We think the evidence did not justify the defendant’s conviction or the order which was made against him. The defendant was a restaurant keeper, and on his marriage with the complainant he secured living apartments for himself and wife. Within a few weeks after the marriage complainant became ill. She was reasonably cared-for during this illness, and on her recovery began working in her husband’s restaurant. An acquaintance of his, who had an apartment in another part of the city, was about to go to Europe, and a proposition was made to the complainant that she go and take care of this apartment during the absence of the proprietress, to which she assented, believing, as she testifies, that it would be easier for her, as she was not strong. She says that the defendant agreed to pay her a certain sum weekly, which he failed to do. Very shortly she had him arrested for lion-support, which proceedings were terminated by the magistrate advising them to live together and settle their difference between themselves. Thereupon xthe defendant caused a letter to be written to the complainant requesting her to come and live with liim at the flat which he had provided, and that iñ the event of her refusal he would feel justified in abandoning such apartments. She refused to accept this offer, and attempts to justify her refusal on. the ground that defendant had treated her cruelly and threatened to do her bodily harm. The evidence in this regard is quite unsatisfactory, and it is quite improbable that she had any reasonable grounds which justified her in refusing to live with the defendant. There was no proof that there was any imminent danger of her becoming a public charge, for she seems to have been able to provide for herself, or to have had relatives who did so.

It is quite evident that there was no abandonment of the complainant by the defendant within the contemplation of the law under which he was. convicted. The offense of abandonment of one’s family is of a criminal character, and the statutes relating to it must be strictly construed. (People ex rel. Feeney v. Dershem, 78 App. Div. 626.) To constitute abandonment, such as is meant by the statute, by a husband "or father, there must be a willful desertion .and voluntary separation by the husband from his wife and children without justification and with the intent of not returning. (People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 629.) And to justify a conviction there must be proof that the wife or child is likely to become a Charge upon the public. (People v. Crouse, 86 App. Div. 352.)

The statute was' not enacted for the settlement of matrimonial differences, and Magistrates’ Courts were not organized to. adjust domestic quarrels. - If the defendant was guilty of such conduct towards the complainant as justified her in refusing to live with him the courts were open to her to bring an action for: separation and thereby obtain provision for her support. A Magistrate’s Court is not a divorce Court, and complaint of abandonment in that court is not a proper method for obtaining a decree of separation from bed and board.

To constitute the ojíense a legal abandonment must be shown, as well as the fact that the wife or child is likely to become a public charge, and in both respects the proof against defendant was insufficient.

The judgment appealed from should be reversed and the proceedings dismissed.

O’Brien, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Judgment reversed and proceedings dismissed.  