
    (57 Misc. Rep. 571.)
    PEOPLE v. ROMAINE.
    (Orange County Court.
    January, 1908.)
    1. Husband and Wife—Failure to Support—Evidence—‘ ‘Disorderly Person.”
    A wife sued for the alienation of her husband’s affection. On failure to recover the parties separated. For 17 years he contributed to • her support, when he refused so to do, though earning good wages, on the ground that he was not liable unless she lived with him. Held that, on evidence that her own earnings were insufficient for her support, he was properly convicted as a disorderly person, under Code Cr. Proc. § 899 (1).
    [Ed. Note.—For other definitions, see Words and Phrases, vol. 3, p. 2111.]
    2. Same—Defenses .
    It is no defense to a prosecution for failure to support a wife that she might have brought an action for divorce and alimony.
    Appeal from Order of Police Justice.
    Proceeding against Charles E. Romaine to make a provision for the support of his wife. From an order that he furnish an undertaking for such support, he appeals. Affirmed.
    
      C. E. & S. M. Cuddeback, for appellant.
    Thomas C. Rogers, Dist. Atty., for the People.
   SEEGER, J.

This proceeding was instituted on the part of the people to compel the defendant, the husband of the complainant, Frances Romaine, to provide for the support of his wife in order that she may not be a public charge, pursuant to the provisions of subdivision 1 of section 899 of the Code of Criminal Procedure. The police justice found and decided that the defendant had actually abandoned his wife without adequate support, and has .left her in danger of becoming a burden upon the public and neglected to support her according to his means.

The complainant and defendant were married in 1871, and lived together about 20 years. They separated about 1890. The complainant accused defendant of intimacy with another woman, and brought an action against the woman for damages for alienating the affections of the defendant, and failed to recover. The complainant and defendant were residing at Newburgh at the time of the occurrences out of which this action grew. They had formerly resided at Port Jervis. The parties then separated, the complainant returning to Port Jervis with the defendant’s consent, and the defendant has since resided at Jersey City and New York, and ever since, until December, 1906, the defendant contributed toward the support of the complainant from $20 to $50 per month. In December he stopped making such payment, and has not since contributed anything toward her support. While the defendant has not been steadily employed all the time since the payments ceased, he does not place his refusal to contribute toward the support of the complainant upon that ground, but, upon the ground that he is not liable to contribute toward his wife’s support unless she lives with him. It does not appear that he ever asked her to live with him before the institution of this proceeding, nor that he has provided any home for her; but it does appear that he spends at least a part of his time at the house of the same woman that the complainant accused of intimacy with defendant, and that he has a regular home.

Upon the hearing before the justice the defendant testified that he was then willing and ready to provide for the support and maintenance of the complainant, and to provide a home for her in Jersey City. The good faith of this offer the complainant had good reason to doubt under the circumstances, and it came too late to constitute a bar to this proceeding. That the complainant was in danger of becoming a burden upon the public when this proceeding was begun was amply proven. She is an aged woman. Her husband had neglected and refused to contribute anything for her separate maintenance, and failed to furnish a home for her or to request her to live with him. Her earnings are not now sufficient for her support.

It is no answer to this charge that the wife may bring an action against the defendant for divorce and alimony. The courts do not favor divorces, and many persons have conscientious and religious scruples against such actions. A wife should not be driven into a divorce court by her husband by starvation. It is to the credit of the complainant that she has preserved the sanctity of the marriage relation during all the years of her separation from her husband, and that she prefers to work for her living and to get along without the aid of the divorce court. She is entitled to such assistance as the laws of the state may secure her from her husband. He is a locomotive engineer earning good wages, and should be able to comply with the order of the police justice and furnish an undertaking that he will support his wife and indemnify the public against her becoming a public charge.

The certificate of conviction should be affirmed, and judgment of affirmance entered, directing its execution pursuant to section 766 of the Code of Criminal Procedure.

Ordered accordingly.  