
    SOPHIA C. DAVIS, Apelllant, v. WILLIAM DAVIS, Respondent.
    
      Husband and Wife — The fact that they cannot lime together in hcmrumy, not ground of separation -r- Mdinten/mce of wife — h/m secured—order for, when proper.
    
    The faet that there is no possibility of a husband and wife living together in harmony, is not ground for a legal separation.
    In such case the parties must be left to bear, as they may, the inconveniences and griefs resulting from their want of harmony and mutual quarreling.
    By the provisions of the Revised Statutes, the court is not authorized to take possession of the property of the husband through the medium of a receiver, in the first instance, but to require security for the payment of the allowance, and to sequestrate his property only in the event of his neglecting to give security, or upon his default after security has been given.
    An,order for the maintenance and support of the wife, under section 55, cannot be made, unless one of the three grounds upon which the statute authorizes a limited divorce, be established in the case.
    
      Atwater v. Atwater (36 How. Pr., 431), followed.
    Appeal by the plaintiff, from a judgment denying a limited divorce, and cross appeal by defendant, from such portions of the judgment, as. direct the appointment of a receiver and the allowance of temporary alimony.
    
      This action was brought by the plaintiff to obtain a limited divorce, on the ground of cruel and inhuman treatment. The answer denies such treatment, and alleges various acts on the part of the wife, showing her quarrelsome disposition and violent conduct.
    Various acts of violence were testified to on both sides.
    The referee, to whom it was referred to take proofs and report thereon, with his opinion, reported, that, on all occasions when violence was used by the defendant towards the person of the plaintiff, the same was provoked by the ill conduct of the plaintiff; that in the various conflicts between them, the plaintiff was the aggressor, and, when collision came, the plaintiff sought, rather than avoided it; that the defendant’s conduct was harsh and unloving, but was so far justified and provoked, as to fall short of cruelty or inhumanity; and that, as matter of law, the complaint should be dismissed, without costs to either party.
    The justice, at Special Term, held that, without interfering with the decision of the referee, there was no possibility of the parties’ living together in harmony, and for this state of facts the defendant was largely to blame, and ordered that a receiver be appointed, to whom the defendant should pay. $3,000, to be invested by the receiver, and the interest paid to the plaintiff.
    
      Smith c& Stanbrough, for the appellant.
    
      William Wickham, for the respondent.
    
      
       2 R. S., 147, § 55.
    
    
      
       2 R. S., p. 147.
    
   Taloott, J.:

This suit was instituted to procure a separation, a, mensa, et thoro, on the ground of cruel arid inhuman treatment by the defendant of the plaintiff, his wife, and upon the ground-that the defendant’s conduct had been such as to render it unsafe and improper for the plaintiff to cohabit with him.

By the consent of the parties, it was referred to a referee to hear the proofs and allegations of the parties, and to report thereon to the com’t, with his opinion. The referee heard the voluminous evidence, and reported the same tó the Special Term, together with an elaborate examination thereof, and his conclusions or opinion thereon. The opinion of the referee was to the effect, that, whenever the defendant had exhibited any violence toward the plaintiff, it liad been provoked by her, she, herself, being the aggressor; and the referee negatived the existence of the cruel and inhuman treatment alleged, or such conduct on his part as would render it unsafe and improper for the plaintiff to cohabit. with him, but expressed the opinion that the complaint should be dismissed. The justice, at the Special Term, does not reverse the decision of the referee on any question of fact, but seems to agree that the opinion of the referee is not to be disturbed upon the facts; but, instead of dismissing the complaint, the Special Term appointed a receiver, and directed the defendant to pay said receiver the sum of $3,000, to be invested, and the income or interest to be applied to the support and maintenance of the plaintiff.

Under the provisions of the Eevised Statutes, relative to limited divorces, the court is authorized, although a decree for separation be not made, to make an order for the support and maintenance of the wife and her children, or any of them, by the husband, out of his property, as the nature of the case renders suitable and proper.

It seems, however, that this is'to be done, not by taking possession, through the medium of a receiver, of the property of the husband, or any part of it, in the first instance, but to require security for the payment of the allowance; and to sequestrate the property of the husband, only, in the event of his neglecting or refusing to give the security, or upon the default of the husband and his surety, after the security is given. The judgment in this case would seem, therefore, to be erroneous, even if a judgment for an allowance, to the wife might be granted, under, section 55. The legislature did not intend to authorize the court to seize, out of the bulk of a husband’s property, in the first instance, a sum sufficient to produce the income, deemed a proper allowance for the wife, but only required him to secure the payment, permitting a sequestration of property, only, • after a default. But there is a more fundamental difficulty, under the rule settled in this department, as to the construction of the said section 55. It was held by the General Term of this department, in Atwater v. Atwater, that an order for the maintenance and support of the wife, under section 55, cannot be made, unless one of the three grounds, upon which the statute authorizes a limited divorce, be established in the case.

Those grounds are, 1. The cruel and inhuman treatment, by the husband, of his wife. 2. Such conduct on the part of the husband, towards his wife, as may render it unsafe and improper for her to cohabit with him. 3. The abandonment of the wife by the husband, and his refusal or neglect to provide for her.

The difficulty in this case, under the rule laid down in Atwater v. Atwater, (supra) is that there is no finding or adjudication by either the referee or the justice at Special Term, that either of the three grounds, upon which a separation can be authorized, exists in the case. The only thing in the nature of a finding or adjudication, upon which the judgment for separate maintenance seems to be based, is a statement in what seems to be intended as an opinion of the justice at Special Term, where he says, after declining, apparently, to come to a conclusion adverse to that of the referee, as to the failure of proof of the facts necessary to warrant a divorce, a mensa et thoro: “ But the whole case shows that whatever be the decision of this action, there is no possibility of the parties living together in harmony. Their disagreements have reached such a point that any expectation of peace between them would be unwarranted.”

This is not one of the grounds for which a legal separation by the court is warranted, and, according to the decision referred to, where such a case alone exists, the parties must be left to bear, as they may, the inconveniences and griefs resulting from their want of harmony and mutual quarreling.

The plaintiff has also appealed from the decree, and claims that a divorce should be granted. It is sufficient to say, that the testimony before the referee, as to the circumstances which transpired at the various quarrels between the parties, (and which are alleged by the plaintiff, as the grounds and evidence upon which she aslcs a decree of divorce) is in the highest degree conflicting, and the case was determined by the referee, mainly on the different credibility of the witness.

As we must follow the case of Atwater v. Atwater, before cited, the judgment of the Special Term, appealed from, is reversed, and judgment is ordered,- dismissing the complaint without costs, and without prejudice to any new suit, to he instituted hy the plaintiff against the defendant for a limited divorce.

Present—Barnard, P. J., Talcott and Tappen, JJ.

Judgment of Special Term reversed, and judgment ordered, dismissing the complaint, without costs, and without prejudice to a new suit for a limited divorce. 
      
       2 R. S. 147, § 55.
     
      
       2 R. S. 148, § 60.
     
      
      
         36 How. Pr. 431; S. C. 53, Barb. 621.
     