
    Mary B. Tower, Respondent, v. Albert E. Tower, Appellant.
    Second Department,
    November 24, 1909.
    Husband and wife — separation — cruel and inhuman treatment— alimony — separation agreement may be considered.
    There is no exact criterion of cruel and inhuman treatment entitling a wife to a decree of separation. Conduct on the part of the husband may or may not be cruel and inhuman dependent upon the temperament, breeding, the condition of life and a variety of special circumstances, and the appellate court will not overthrow the findings of the trial court in the absence of legal error. Evidence examined, and held, to justify a decree of separation.
    While a separation agreement made while the parties are living together is void, the amount the husband agrees to contribute to the support of his wife by such agreement may be considered when awarding alimony in a decree of separation.
    Appeal by the defendant, Albert E. Tower, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 28tli day of December, 1908, upon the decision of the court rendered after a trial at the Westchester Special Term in an action for a separation.
    
      Charles E. Le Barbier, for the appellant.
    
      Charles Morschauser, for the respondent.
   Woodward, J.:

The learned -court, upon a trial of this action, has found as a fact that “for about two years immediately preceding ¡November 1st, 1907, the defendant has treated the plaintiff in a cruel and inhuman manner, becoming intoxicated at a number of times, and frequently associating with and compelling this plaintiff to associate with a woman of ill-repute and forcing her in her company and treating the plaintiff in a cruel and inhuman manner and withdrawing his society and companionship at long intervals from her,” and that “on,or about the 1st of November, 1907, the defendant refused and neglected to provide for the plaintiff and wholly abandoned her without any proper means suitable to his station for her support, and failing to provide her a suitable house to live in suitable for habitation, or to furnish her with any means or money.” Upon these facts, the plaintiff being the lawful wife of the defendant, the court has reached the conclusion of law that she is entitled to live separate and apart from her husband and to have the sum of $700 per month for her support and maintenance. The defendant appeals from the judgment.

There is no exact standard of what constitutes cruel and inhuman treatment. Conduct on the part of a husband which, under some circumstances, might be passed over without serious consideration, is, under other circumstances, cruel and inhuman ; it depends upon the temperament, the breeding, the condition in life, and a great variety of special circumstances which find peculiar expression upon the trial, and which cannot, in the very nature of things, be made to appear in a printed record. In the absence, therefore, of legal error appellate courts should be reluctant to interpose to overthrow the. findings of fact made by the justice presiding at the trial. While there are some matters in this record which appear comparatively trivial, and which might be accounted for by an unreasoning jealousy on the part of the plaintiff, the testimony as a whole appears to be sufficient to justify the findings of fact made upon the trial, and if the facts are as found, the judgment follows as a matter of course. °

It appears that at a time when the parties were living together they entered into a voluntary agreement to live apart, and the defendant in that agreement undertook to pay $700 per month, and to furnish a house and other things for the use of the plaintiff; and .while this agreement was of course void, it furnishes some basis for the determination of a proper allowance for the plaintiff in this action when she has established her right to live apart from her husband, and the latter has no ground for complaint upon this score.

The judgment appealed from should be affirmed, with costs.

Hirsohberg, P. J., Burr, Rich and Miller, J"J., concurred.

Judgment affirmed, with costs.  