
    Mary Gloster, an Infant, Suing by Cornelius McElligott, her Guardian ad Litem, Respondent, v. Maurice Gloster, Appellant.
    
      Husband, and wife — cruel and inhuman treatment -r- requiring a wife not to go near her parents — abandonment.
    
    Proof that a wife, 18 years old and weighing 103 pounds, from the time of her marriage until three days prior to the birth of her child, which occurred about ■ nine months after the marriage, was, although in delicate health and physically Unable to do the work, against her remonstrances, compelled by her husband to do not only the ordinary housework, but also to cook the free lunch for his saloon, an operation involving the lifting of an iron pot weighing fifty pounds upon a stove three feet high, taken in connection with the fact that he swore at her, left her alone at night in great fear, failed to provide her with proper clothing for outdoor use, and refused to allow her to visit her parents, who lived near by, justifies the granting of a separation upon the ground of cruel and inhuman treatment.
    A husband who drives his wife from his home, merely because she will not promise not to go near her parents, is guilty of legal abandonment.
    Van Brunt, P. J., and Ru'msey, J., dissented.
    Appeal by the defendant, Maurice Gloster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the; 6th day of April, 1897, upon the decision of the-court rendered after a trial at the Hew York Special Term.
    
      A. H. Hummel, for the appellant.
    
      W. S. Burt, for the respondent.
   Williams, J.:

The action was brought to procure a sejiaration of a husband and wife from bed and board, and to> compel the husband to make suitable provision for the support of the wife. The grounds upon which the action was based were cruel and inhuman treatment,, neglect and refusal to provide for, and abandonment of the wife, ■ The court granted the decree of separation, and adjudged that the husband pay eight dollars per week for the wife’s support during her natural-life. The parties were married December 4, 1894. The husband was then thirty-seven years of age, and the wife was eighteen years of age. The husband was a saloon keeper. The wife became pregnant soon after the marriage, and gave birth to a child about nine months thereafter The court found that the husband was guilty of cruel and inhuman treatment of the wife; that he compelled her from the time of the marriage until near the time of the birth of her child, against her remonstrances, not only to do the ordinary housework, but to cook free lunch for the saloon, the lunch consisting of large pieces of meat of different kinds, often weighing about fourteen pounds, to place this meat in a large iron pot which she had to lift upon a stove three feet high, the whole weighing about fifty pounds including water, to lift same down when cooked, she being all the while in delicate health, unused and physically unable to do this work; that he.swore at her and used violent and profane language toward her, shocking her and causing her mental anguish; that he often left her alone at night, in great fear, saying on his return that he had been playing poker; that he failed to provide for her proper clothing to enable her to go out of doors, and finally abandoned her, refused her admittance to his house, and neglected to furnish her with the necessaries of life.

These findings were sufficiently supported by the evidence. The wife weighed only 103 pounds, and her health was not good. She was compelled by her husband to do the work described during her pregnancy, and until within three days of the birth of her child. It caused her a terrible feeling inwardly; lifting the pot caused her sides to feel as if falling in, and she had terrible stitching pains in the side from it. She complained to her husband, but he merely gave her abuse, swore at her, said that he didn’t get her to put in a glass case, and that she couldn’t live with him unless she did this work. Once she left him on this account, about four months after the marriage, but he made her fair promises and she returned, when he treated her the same again. It is no wonder the child, when born, was a feeble, sickly one and soon died. The treatment was cruel in the extreme, and, taken in connection with his swearing at her, his leaving her alone at night, and his refusal to furnish her proper clothing, and his denying her the right to visit her own people who lived nearby, was sufficient ground for granting the separation by reason of cruel and inhuman treatment.

After the birth' of the child the wife lived two weeks with her husband; then she went to her mother for three days; then she returned to her husband’s home and he told her she could not live with him unless she gave up her people; that tinder no condition could she live with him unless she solemnly promised not to go near her peo-‘ pie. She said she could not do that, and thereupon he said : Get out, then, you can’t live with me.” This constituted abandonment. ITe drove his wife from his house, refusing her the right to live with him, giving as a reason for it only that she would not promise to entirely abandon her own people, the mother and father who gave her life and cared for her in her infancy. This was no legal or proper excuse for turning his wife outdoors and constituted legal abandonment.

It may be said that afterwards he urged her to return to him, and that may be true, but .it does not appear that he waived the condition already made, that she should abandon her parents.

The evidence offered by the wife was more or less the subject of contradiction on the trial by defendant and the witnesses produced by him, but the witnesses were present before the trial judge, and he had the opportunity to hear their evidence and to observe their bearing, and he could better determine whether they testified truly than we can upon printed papers. We think his conclusions as to the facts should not be disturbed by us.

Judgment appealed from should be affirmed, with costs.

Barrett and Patterson, JJ., concurred ; Van Brunt, P. J,, and Rumsey, J., dissented.

Judgment affirmed, with costs.  