
    The People of the State of New York ex rel. Freda Mueller, Respondent, v. William Mueller, Appellant.
    Second Department,
    November 13, 1914.
    Husband and wife — failure of wife to live in place provided by husband—when husband may not be committed as disorderly person for non-support.
    A wife who, with her children, has refused to live -with her husband in an apartment provided by him, and has been unsuccessful in an action against him for separation, and in proceedings by habeas corpus brought by him to recover the children has been awarded their custody, upon a finding that she kept them in comfortable circumstances, and that their physical condition demanded that they remain with her, may not, one month thereafter, cause the husband to be committed as a disorderly person because he has not supported the children, especially where she has failed to explain how she became unable in the course of one month to support the children.
    Appeal by the defendant, William Mueller, from an order of the Oounty Court of Queens county, entered in the office of the clerk of said county on the 27th day of June, 1914, affirming a judgment of the Magistrate’s Court of the city of New York, borough of Queens, adjudging the defendant a disorderly person in having abandoned his two children and ordering him to pay a weekly sum for their support.
    
      Clinton B. Smith, for the appellant.
    
      Herman Stiefel [Frank L. Polk with him on the brief], for the respondent.
   Thomas, J.:

The defendant, after providing duly for his wife and children, sharing for that purpose with her parents a house at Flushing, moved to Long Island City, where he took an apartment, to which he invited his wife to come with her children, which she refused to do. She brought action for separation with provision for the support of herself and children, upon the ground that her husband had failed to furnish such support, and also on account of cruel and inhuman treatment. The decision was against her. In proceedings by habeas corpus taken by him to recover the children, she returned, on February 6, 1914, that she had kept them in comfortable circumstances and had thoroughly and properly provided for their general welfare and that their physical condition demanded that she continue their custody. The court decided that the welfare of the children required that they continue in the custody of the mother, with certain permission to the father to see them. On March sixth the wife caused the husband to be apprehended as a disorderly person because he did not support the children, so committed to her custody, and in a proceeding in which she stated that she had not means to support the children or means of employment he was found to be a disorderly person, directed to pay eight dollars per week for the support of the children, to give security therefor, or, in lieu thereof, be committed. So the father, decreed not to have been in dereliction in the support of his wife and children, and, although innocent, deprived of the custody of his children by her failure to live with him in the place tendered her, unlawfully detaining his children from him by absenting herself from his bed and board, is condemned for failure to support his children. There is no explanation of the ability of the wife to take care of the children as indicated by her in the habeas corpus proceeding, and her lack of means as alleged to obtain the present order. If she was competent then, as she must have led the court to believe, she is competent at present, or at least she should explain how she became disabled in the course of one month. Moreover, the children cannot become a public charge, as the husband is ready and willing to take them and their mother and provide for them according to his right and duty. The fact seems to be that the mother threatens to make them a public burden, after gaining possession of them upon representation of past care which the court must have thought would continue. It is her fault if they become a public burden, inasmuch as she in duty should go to the home her husband is willing to provide, in which case they would have her care, his care, and full support.

The order of affirmance of the County Court should be reversed; the judgment of conviction of the city magistrate should be reversed, and the proceedings dismissed.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Order of the County Court of Queens county reversed, and judgment of conviction of the city magistrate reversed, and proceedings dismissed.  