
    William V. Kissam, Appellant, v. Leila H. Kissam, Respondent.
    
      Husband and wife—drunkenness as bearing upon the question of cruel and inhuman ' treatment—proof required of such treatment—presumption in the absence of a statement that the case contains all the evidence.
    
    While drunkenness alone is an insufficient basis for au action for separation, it has an important bearing on the question of cruel and inhuman treatment — sufficiently so, to characterize acts as cruel and inhuman which would otherwise be regarded as insufficient to establish such treatment.
    Where there is proof that a husband was, in the three years next- succeeding his marriage, an inmate of four different institutions for the cure of drunkenness; that during the larger part of the time he lived with his wife he was in a state of intoxication, .ranging from partial to complete stupor, and that on three occasions he struck her, the court is justified in decreeing a separation. Where upon an appeal from a judgment there is no statement that the case contains all the evidence, the Appellate Division will presume that evidence was given sufficient to support the judgment.
    Appeal by the plaintiff, William V. Kissam, from a judgment of the. Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings.on the 12th day of November, 1896, upon the report of a referee, and also from an order made at the Kings County Special Term and entered in said- clerk’s office on the 21st day of December^ 1896, denying the plaintiffs motion for a retaxation of costs.
    
      William J. Hardy, for the appellant.
    
      J. S. L'Amoreaux and Frederick C. Dexter, for the respondent.
   Hatch, J.:

The plaintiff brought his action for a separation, based upon the allegations of abandonment by the defendant, and of a continued refusal by her to live with him. The defendant answered by interposing a denial of the abandonment, and setting up, by way of counterclaim, that the plaintiff abandoned her, and that he has been guilty of cruel and inhuman treatment toward her of such a character as renders it unsafe and improper for her to cohabit or live with him, and asked judgment for a separation, together with other relief. The evidence given upon the trial before the referee was very voluminous, and in effect gave a detailed account of the marital relations of the parties from the time of their marriage down to the date of the alleged abandonment, and to some extent, afterwards. By the record it appears that the plaintiff was addicted to the use of intoxicating liquors to an extent which brings him dangerously near to being an habitual drunkard. Between the date of his marriage in November, 1892, and December, 1895, he was an inmate of four different asylums or institutions for the cure of drunkenness. The first institution he visited for the cure of his alcoholic habit was at White Plains. He entered this institution in the last of February, and remained until the 6tli of April, 1893. He almost immediately relapsed into his former habits upon leaving the institution, and on the thirtieth day of the last-named month he again sought admission to the same institution, and was refused. In May, 1894, he was an inmate of the New York Christian Home, a cure for inebriates, where he remained taking treatment for about two and one-half months. About August 1, 1894, he entered a similar institution at Fort Hamilton, where he remained six or seven months. In June, 1895, he entered the Rose Baker Gold Cure at Cornwall, where he remained about three months. He left Cornwall in the last of September, had a relapse and returned in November, 1895, remaining until December ninth of. that year. In the interval between his discharge from the last-named institution in September, and his return thereto in November, he had a period of sobriety sufficient in length to enable him to verify his complaint and institute an action against his wife, charging her with abandonment, and demanding the custody of the child of the marriage. He had, prior thereto, evidenced an intention of laying the foundation for this action, for while he was an inmate of the institution at Fort Hamilton he caused a letter to be written to the defendant’s father, as her attorney (he being a. lawyer), demanding that she forthwith return'to his bed. and board. Just where his bed and board were to which he invited his wife at this time does not clearly appear. There is nothing which would lead to the supposition that he expected her to join him at Fort Hamilton. While it is the rule that drunkenness alone is not sufficient upon which to base an action for separation, yet it has logically and rightfully an important bearing upon the question of cruel and inhuman treatment — sufficiently so, to characterize acts as cruel and. inhuman which would otherwise be regarded as insufficient for that purpose. Continued drunkenness may be so connected with other-acts of the husband as to lead the mind to the conclusion that, cohabitation with him by the wife may become unsafe and improper, and, therefore, justify a judgment of separation; when the acts-standing alone w.ould be insufficient to support such a result. In the present case the referee was justified upon the evidence in reaching a conclusion that the plaintiff, so long as he continued, to live with the defendant, was for the larger part of the time in a state of intoxication, in stages ranging from partial to complete stupor. The mortification, pain, suffering and mental anguish which is engendered in the mind of a sensitive, refined woman by such conduct is oftentimes more acutely cruel than the bruising, of the flesh by a blow. The vice-chancellor was not speaking of such an aggravated case of intoxication and drunkenness, when he wrote in Mason v. Mason (1 Edw. Ch. 278), as is found in the present record. We recognize-the fact, however, that the court has usually insisted that acts constituting cruel and inhuman conduct in a legal sense, are such as arise from actual violence, endangering life, limb or health, or creating a reasonable apprehension of such violence. (Kennedy v. Kennedy, 73 N. Y. 369.) This rule, however, is subject to qualification, and,, .as we have before observed, the existence of aggravated-drunkenness, in connection 'with acts of violence, may make out a case where otherwise it would fail. The. rule of the later cases has brought the-doctrine to -.rest upon a rule somewhat less strict and more humane than that -announced in some of the earlier cases. Mr. Justice Van Brunt in Lutz v. Lutz (31 N. Y. St. Repr. 719) states this to be the rule: Cruel and inhuman .treatment does not necessarily imply such treatment as places a. wife in physical fear of the husband. The conduct of the husband may produce such mental agony in the wife as to be even more cruel and inhuman than if mere physical pain had been inflicted; and where the conduct of the husband towards the wife is of this character, it is certainly cruel and inhuman, and justifies the court in freeing her from the necessity of submission to such treatment.” This doctrine has received support from other courts (Atherton v. Atherton, 82 Hun, 179; Waltermire v. Waltermire, 110 N. Y. 183), and must now be regarded as the law. In the present case we find that, upon at least three occasions, the plaintiff inflicted personal violence upon the person of the defendant by striking her a blow. On one of these occasions the defendant says he was sober. Moore, a witness, says he was intoxicated. The scene is described by the defendant and by Moore, and leaves no room for doubt but that the act complained of justified the court in determining, when coupled with the other facts, that the treatment was cruel and inhuman. On another occasion, when the defendant was trying to rouse him from a drunken stupor, he struck her full in the face. It is argued that he was not conscious of this act, ynd probably this is ..true. But it did not mitigate the violence of the blow, nor does it detract from the fact that he intended to strike whomever it was that disturbed him. It was none the less a cruel blow, and he cannot be excused from its legal consequence by pleading that he was drunkenly stupid. Drunkenness has not invested its victim with legal immunity in such case. On the contrary, it is strong evidence to show that his drunken habit had created a condition which rendered him dangerous and, consciously or unconsciously, liable to commit acts of personal violence which would be a constant menace to the personal safety of the wife, and might render it unsafe and improper for her longer to cohabit with him. It is not at all essential that we. refer in detail to all of the acts which appear in the evidence. It is sufficient to say that we have examined the record and find in it sufficient to justify the judgment which has been rendered. If, however, the evidence in the record was insufficient to uphold the judgment, we should be compelled to reach the same conclusion, for the reason that there is no statement that the case contains all the evidence, and we must, therefore, presume that evidence was given sufficient to support the judgment.

There was also an appeal from an order allowing certain costs as faxed, which was argued with the present case. The order should he- affirmed. The affidavit of the referee shows that the sum taxed' as his fees was actually incurred, and it seems to be reasonable. In stating its amount in the bill of costs served upon the plaintiff a mistake was made, but this should not prejudice the party in having the same corrected.

It follows that the judgment should be affirmed, with costs, and the order affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs, and disbursements. Judgment affirmed, with costs. •  