
    Martha J. Murdock, Appellant, v. David W. Murdock, Respondent.
    Third Department,
    December 28, 1911.
    Husband- and wife.—separation—effect; of former judgment for-limited - separation-:—what .evidence' admissible lonx.s.econdvtrialv
    A person who has been granted a judgment of separation for a limited time, by a decree stating for “causes which might be removed by the defendant ’’'-and that “ a permanent separation ought not at this, time ■ to-he-granted',”’and whosemotion.made-:ht: tire -end of such time, for - a permanent separation has-been denied-, can,maintain a new action for a permanent separation on a complaint alleging the same, facts set forth ' in the first action. -
    It is error for the court on the second action to limit plaintiff's proof to what had occurred since the first decree had ceased to be- operative, and to exclude evidence offered toy her to show defendant’s cruel and inhuman treatment prior to the first action.
    Plaintiff should be permitted to show everything pertaining to the married Hie of the parties, so that the court may have full information to enable it to frame its decree.
    Where plaintiff on the trial introduced in evidence the former judgment, testified to practically the same facts as those on which that judgment was rendered, and further showed that defendant had given her no support, had posted her in the papers and had made no attempt to speak to her or to offer her a home since the first decree was made, there was evidence sufficient to justify a decree of permanent separation. Hottg-htoit, J., dissented, with opinion.
    Appeal by the plaintiff, Martha J. Murdock, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 5th day of July, 1911, upon the decision of the court, at the close of plaintiff’s case on a trial at the Warren Trial Term before the court without a jury, dismissing the complaint upon the merits.
    
      Charles P. Coyle, for the appellant.
    
      James S. Kiley and A. C. Taylor, for the respondent.
   Betts, J. :

The parties were married November 15, 1906. They separated about February 25, 1907, plaintiff leaving defendant’s house after defendant had attempted to eject her therefrom and after much abuse by the defendant and his mother, with whom the parties lived, and after, as was later- found by the court, the defendant had been gmilty of cruel and inhuman treatment of plaintiff. Shortly thereafter the plaintiff brought an action for a separation alleging cruel and inhuman treatment. Defendant denied this and alleged plaintiff’s absence from defendant without any intention of returning. The case was tried before Justice Spesger on or about April 7, or 17, 1907. The judgment was filed in the Warren -county clerk’s office May 7, 1907. The conclusions of law of the learned justice were: First. “ That the defendant has been guilty of cruel and inhuman treatment of plaintiff.’’ Second. “That the defendant has been guilty of such conduct toward the plaintiff as to render it unsafe and improper for her- to cohabit with him.” Third. “ That in view of the fact that the parties hereto were so recently married and that the causes which lead the Court to grant a separation are causes which might he removed by the defendant, and that in the judgment of the Court a permanent separation ought not at this time to be granted,” a judgment for a separation for two years was granted and it provided that the defendant pay plaintiff the sum of three dollars alimony per week and plaintiff was awarded costs of twenty-five dollars and disbursements. Such a judgment was entered, costs paid and alimony paid until the expiration of the .two years, when defendant ceased paying alimony. Whereupon after a motion at a Special Term presided over by Justice Spencer asking to have the separation between the parties made permanent and for the continuance of the alimony,, both of which were denied, this action was brought on or about December 7, 1910. In her complaint the plaintiff alleges abuse, ill-treatment, and ill-usage by the defendant and practically the same facts that were alleged in the former action including cruel and inhuman treatment and that the defendant had' been guilty of such treatment and conduct toward the plaintiff as rendered it unsafe and improper for the plaintiff to cohabit or live with the defendant. The prior action and the result thereof is then set forth and the plaintiff asks for a separation and for alimony.

The answer denies the allegation as to the wrongful treatment by the defendant of the plaintiff and sets up the former judgment and the defendant’s compliance therewith as practically a bar to this action and asks that the complaint be dismissed.

Before the commencement of the trial the court announced: There is no cause of action here for cruel and inhuman treatment. That has been tried. You have alleged that he has failed to provide for her, although she has requested him to do so. I will hear evidence on that allegation.” Thus the evidence which thé plaintiff was permitted to introduce was limited by that ruling of the court.

Upon the trial the plaintiff introduced the former judgment and testified to what I assume to be practically the same matters for which the judgment was originally given and the further fact that no support had been accorded her by the defendant, that she had been posted in the papers by him and that the defendant had made no advancements towards her in the way of speaking or in the way of her future living or offering her any home or providing for her in any way and that she had endeavored to make a living by working at various places. Upon the close of the plaintiff’s testimony the defendant moved to dismiss the complaint on the ground that the plaintiff “has not sustained the burden of placing herself in a position to ask for a judgment of separation, in that she has not offered to return, or asked the defendant to provide her a home, or asked any aid of him. Therefore, there has not been an abandonment.” The court announced its decision as follows: “The Court: I must decide the case on what has occurred since the time that the decree ceased to be operative. It may very well be that this man will refuse to take care of his wife, but he has not yet refused to do so, according to the proof. Until he has there is no proof on which a court can grant a decree compelling him to. * * * That is a decree of the Court which has been fulfilled. I think that she should in some way demand that he support her before an action for abandonment can be maintained. So I will grant the motion.”

Whereupon he dismissed the complaint, granting costs against the plaintiff, and it is from this judgment that the appeal is brought.

Section 1762 of the Code of Civil Procedure, so far as material, is as follows: “In either of the cases specified in the next section, an action may be maintained, by a husband or wife, against the other party to the marriage, to procure a judgment, separating the parties from bed and board, forever, or for a limited time.”

Substantially the same statute has been in force since the Revised Statutes. (See R. S. pt. 2, chap. 8, tit. 1, art. 4 [2 R. S. 146], § 50.)

The 'question is presented here whether a person who has had a judgment of separation for a limited time, i. e., for two years, and after the expiration of the two years has asked the court to make that separation permanent, which was denied, can maintain a new action for a separation, separating the parties from bed and board forever ?

. The-.result •©£ this-actiom has- been ¡that the-court has practically held, that sneh ;an:acti©n. could not be. maintained. Bearing'in mind. that this separation lor- a. limited time was ¡.stated in the findings <©£ Justice .Sebfcer to be-.for “causes which might be removed by the defendant,, and. that .in. the-.judgment, of. the (Court a permanent. -separation ¡©mght not at this time- to-be-granted,.” I think that this- ¡action was, properly maintainable,. ¡and. that the plaintiff should not. have been limited, an her proof, and that evénas,.so .limited there: was sufficient -.evidence, t® justify the- court ingranting the- judgment for separation from bed .-and hoard, forever to the ¡plaintiff. •

. This case very wel. -illustrates the wisdom of the-decision of the- chancellor in 1819' in Barrere v. Barrere (1 Johns. Ch. 187). la that case the propriety of a tdivorc©- from, bed ¡and board £©r\a limited time> -or forever, was- very fully .and -carefully cousidered by the -learned chancellor. The -conclusion which he reached ¡after--exhaustive citation of authorities, in -this- .-and many other- countries, was that -such a separation when- decreed should be made perpetual with a proviso- that the- parties m-ay, at ,any time, by their -mutual -and voluntary act, apply, to the court for leave- to be -discharged, from the-decree-.. Had .-such ¡procedure- been followed in this -case.much litigation would have-been-avoided ,-and the ¡awkward, .-situation' now existing would not have obtained.

.1 do not find the precise-question passed ¡upon.

Tn Hobby v. Hobby (5 App. Div. 496) the plaintiff obtained a judgment of -separation from the--defendant -in. 1868. .After-wards the parties, became reconciled and. lived together-as husband and wife from 1875 to 1880, when the defendant again abandoned the plaintiff. The judgment -of separation was not vacated or set -aside- fey the court. After the- defendant abandoned .the- plaintiff the parties entered into an agreement -of separation through a trustee under which for some time the-defendant paid, the plaintiff alimony.. Later the -defendant stopped paying alimony., Whereupon -the plaintiff brought ,a new ¡action-, -to ©fetain.-a decree-of separation from the defendants bed and board. The -question .came before- the .-court upon a. motion ©£ the plaintiff for alimony and counsel fee, alimony having been granted by the Special Term. ' The court there-held jfoazfe: the action eouldi not be- maintained,., and reversed the order awarding the plaintiff, alimony, the; conclusion, hehag, that the plaintiff should proceed to enforce, the original decree of separation.

Of. course no. such procedure- can he had here as. the original decree has expired by its own limitation at the end of two years," hence if the wife, cannot maintain this; action and secure alimony from a husband who- cruelly and inhumanly treated her up- to- the time of their actual, separation, and who has in no way attempted to provide for her since, or to establish a reconciliation with her, she is remediless. I do not think that such a situation should be- permitted to exist, and think that this wife- should, he; permitted to. continue this, action to; a conclusion.

As to; the-restidetions placed upon the.plaintiff inker attempt t©' prove- matters- which, necessarily were- considered upon the prior- action,, Powers v. Powers (84 App. Div. 588); says.:; “ It may be laid down, .as a. general rule in such actions- that a picture- of the- previous married life- of the. parties,is essential to an intelligent and fair-conclusion as to- the- effect which, ought to be. given to. proof of a particular act of cruelty on the- part of the husband.” So I think in. this-case everything pertaining to the- married life- of the parties was essential to he brought out so that the- court might be put in possession- of the fullest information in order to frame the decree which ultimately would he granted

" Dor this reason I think that the-exclusion of testimony on the part of the court, was an error;

See as to costs against a wife in a matrimonial action De Rose v. De Rose (Hopk. Ch. 100).

It follows that the judgment appealed from should he reversed, with costs and disbursements against the defendant.

All concurred, except Houghton, J., dissenting, in opinion.

Houghton, J.

(dissenting):

The plaintiff saw fit to bring an action for separation from her husband. The result was a decree of separation for the term of two years, with a provision for alimony for her support and maintenance, which alimony was paid. It must be assumed that she was satisfied with this decree because she did not appeal therefrom. By her own voluntary act, therefore, the plaintiff by a decree of the court established her status of separation from her husband and separated herself from him. After the expiration of two years he ceased separately maintaining her and provided nothing for her support separate from himself. After the decree which the plaintiff had obtained had spent its force by limitation of time she brought the present' action, alleging the same cruel and inhuman treatment which she alleged in her prior action and did not plead that the defendant had abandoned her.

I think under the circumstances disclosed the plaintiff had no right to invoke the ill-treatment which she suffered prior to the decree as a ground for another decree of separation, for those acts had spent their force and as to them the decree was a bar (Fera v. Fera, 98 Mass. 155), and that the learned trial court was entirely right in saying that she could not have another decree except upon facts arising subsequent to her former decree. She could not prove non-support because she did not allege that' as a ground for asking judgment. Even if she could make such proof, having separated herself from her husband voluntarily, it was incumbent upon her to put him, in default by making some demand for support upon him or requesting that he provide a home for her. Even this she did not do.

Very likely the awarding of costs against the plaintiff was an oversight, and I think they should be stricken out. With that modification I think the judgment should be affirmed.

Judgment reversed on law and facts and new trial granted, with costs against defendant.  