
    Agnes Schleifer, Resp’t, v. Henry Schleifer, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Divorce—Limited—Release.
    The parties hereto separated, defendant agreeing to pay a certain sum per month. A subsequent attempt to live together was prevented by defendant’s cruelty. Subsequently plaintiff signed a release in ignorance of its contents, believing it to be a receipt for the money paid, and defendant thereafter refused to make further payments. Seld, that plaintiff was not bound to ask her husband to go back and live with her before she could maintain an action for a limited divorce, her departure from her husband's house not being an, abandonment under the circumstances.
    
      Appeal from judgment in favor of plaintiff.
    Action for a divorce a mensa et ihoro.
    
    
      George H. Bruce, for app’lt; M. L. Towns, for resp’t.
   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 twenty-eight dollars per month. In January, 1889, the parties made an attempt to live together; but it was prevented by the cruel and violent treatment to the wife by her husband. He flogged her, kicked her and locked her up. The alimony was paid up to the -6th of October, 1890, and probably for the month of November, 1890. On the 13th of November, 1890, twenty-eight dollars was paid, and a paper was signed by the plaintiff. This was a general release. The wife supposed it was a receipt for the twenty-eight dollars paid. In this she is supported by the witness Greisseman, 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 thirty dollars 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.

Dykman and Cullen, JJ., concur.  