
    David Kent, Resp’t, v. John H. Brinckerhoff, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887.)
    
    Mabbted women—When wife justified in leavinq husband—Liability OF HUSBAND FOB SEP abate suppobt.
    In an action for necessaries furnished to a married woman who had left her husband on the eve of being confined. Reid, that if the jury, from the evidence, believed the state of hostility in which the parties at that time lived was dangerous to the health of the mother and the expected child, ' they were authorized to find the wife justified in leaving the husband’s house and going to her relatives.
    Appeal from a judgment entered upon a verdict rendered by a jury in favor of plaintiff at the Dutchess county circuit.
    Louisa Brinckerhoff, the wife of the defendant, left her husband’s house about January 9, 1886, and went to the house of her grandfather, Elijah Odell. She was there delivered of a child on the eleventh of February following. In August of that year she first went back to his house. During the mtervening time, an action for divorce had been brought, tried and decided against the plaintiff in jliat suit. While Mrs. Brinckerhoff was at her grandfather’s, he furnished her with board, care, washing, lodging, nursing, attendance and transportation, to the amount of $395. This claim of Mr. Odell was assigned to the plaintiff, who brought this action to recover it.
    The charge of the trial judge was as follows:
    “Now, to justify this wife in leaving her husband, I charge you that you must find that he was guilty of cruel or inhuman treatment, or of such conduct as rendered it unsafe and improper for her to reside with him. As to cruel and inhuman treatment, of course, physical violence constitutes such, and so also do menaces, threats of physical violence. I charge you, further, -that there might be cruel and inhuman conduct where there was no actual physical violence. Constant reproaches, ebullitions of temper, constant false accusations, the constant subjection to degrading indignities of speech, might so impair the health of the wife, and be so dangerous to her health, as would constitute it unsafe for her further to reside with him. In the same way as to the question of this child. Of course, it w.:s her duly to do all she could, becoming pregnant, to safely bring that child into the world. Both the law and moralty required that of her. If the suggestion was made that she should get rid of the child, to use her language, and by abortion, or a premature birth of the foetus, prevent the actual birth of a living child to the living world, it was suggesting a crime to her, and it was her duty to resist it; and when the time for her pregnancy came, if she had reason to apprehend that that child would not be safely delivered there, that is, that there would be any foul play about it, then, of course, she was justified in leaving and going somewhere else. But you must say, was there such a fear ? Was there a real fear at that time of any foul play with regard to the child ? If there was, then, if there was no other violence than that, I charge that that was sufficient ground for her leaving him. But to justify her leaving him on that ground, you must believe that there was. and that she had the right to seriously apprehend that. Of course, if you find that the fi.ther did not make such a proposition at any time, the whole claim is groundless In the same way about physical violence. You have got to find at the time she left there was actual danger of physical violence being offered to her. If there was, then she was justified. But if there was not such actual imminent danger, she was not justified. All of these quarrels, so far as they existed in their past life, were not sufficient ground for leaving, unless they amounted to such a constant thing as to impair the health, the peace of mind of this plaintiff—of the wife. If they did go that extent-to impair the health, then she was justified.”
    
      Thompson, Weeks & Lown, for resp’t; John P. H. Tallman, for app’lt.
   Pratt, J.

The jury were distinctly charged that unless the wife was justified in leaving her husband, the verdict must be for defendant.

The circumstances under which the wife would be justified in leaving home were stated, we think, correctly.

The principal exception is to that part of the charge which states that indignities short of actual physical violence, might justify the wife in leaving her husband’s roof, if so constant and continued as to impair her health and render it unsafe for her to live with him.

The charge had reference to a pregnant woman on the eve of being confined, and if the jury, from the evidence, believed the state of hostility in which the parties at that time lived was dangerous to the health of the mother and the expected child, we think they were authorized to find the ■ wife justifiable in leaving the husband’s house and going to her relatives.

The request to charge, so far as they were legally sound, had already been charged.

As the value of the services was conceded, it was not error to decline to receive a verdict for the smaller sum.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  