
    The People of the State of New York ex rel. John W. Keller, a Commissioner of Public Charities in the City of New York for the Boroughs of Manhattan and The Bronx, on the Complaint of Georgiana Shrady, Respondent, v. George Shrady, Appellant.
    
      What is a defense to pi'oceedings to compel a husband to support Ms wife—infidelity of the wife established by pi'oof or by a decree—effect of a verdict of mutual infidelity, where the husband was the first offender.
    
    To establish a defense to a proceeding instituted on behalf- of the People, by a. commissioner of public charities of the city of Hew York, to compel a husband to support' his wife, the husband must show that he has obtained a decree dissolving the marriage relation, or prove, by independent evidence, facts, such as-the infidelity of the wife, entitling him to such relief.
    In such a proceeding a certified copy of the findings of a jury in an action previously brought by the husband against the wife for a divorce, to the effect . that both the husband and the wife had been guilty of adultery, the husband's-misconduct preceding that of the wife, does not constitute a defense.
    
      Semble, that independent proof of the facts found by the jury would not constitute a defense, as they would not entitle the husband to a divorce.
    Appeal by the defendant, George Shrady, from a judgment of the Court of General Sessions of the Peace held in and for the city and county of Hew York .in favor of the relator, entered in the office of the clerk of said court on the 15th day of September, 1898, affirming a judgment made by a magistrate of the city of Pfew York convicting said defendant of abandoning his wife, and ■directing him to pay the sum of eight dollars per week for her support.
    
      David M. Neuberger, for the appellant.
    
      Adrian T. Kiernan, for the respondent.
   Barrett, J.:

Upon the tria* a certified copy of the findings of a jury in an action in the Supreme Court, brought by the defendant to procure a divorce from the complainant, was introduced in evidence. The jury there found that both the defendant and the complainant had been guilty of adultery, the defendant’s guilty acts being prior in point of time to that of the complainant. We do not think that these findings exonerated the defendant in the present proceeding.

There can be no doubt of the general rule that the infidelity of the wife justifies the husband in separating from her, and thereupon terminates his obligation to support her. Mot only does it preclude, her from pledging her husband’s credit for necessaries (Gill v. Read, 5 R. I. 343; Hunter v. Boucher, 3 Pick. 290), but it is a defense in proceedings brought in behalf of the public to -compel him to support her or to punish him for failing to do so. (People v. Brady, 13 Misc. Rep. 294; Culley v. Charman, L. R. (7 Q. B. Div.] 89; Rex v. Flintan, 1 Barn. & Adol. 227.) We have Rere, however, no independent evidence of the complainant’s infidelity. The defendant relies solely upon the verdict in the divorce action. Whether the verdict was subsequently sustained or set aside does not appear. We know nothing of any further proceedings in the. case. There was no attempt to prove that judgment had been Tendered upon the verdict. The findings of a court or the verdict of a jury, even in an action between the same parties, is not conclusive unless actually followed by judgment. (Springer v. Bien, 128 N. Y. 99.) But the present proceeding is not even between the same parties. The former defendant is, it is true, the present complainant, but the proceeding is brought by the People, on the relation of the commissioner of public charities, to compel the defendant to furnish the support necessary to prevent the complainant from becoming a public charge. The proceeding is between the People and this defendant. Nothing can stand in the way of such' a proceeding save independent evidence of infidelity, or a decree of a court of competent jurisdiction severing the matrimonial tie.

The findings'of the jury were, it is true,-put in without objection. That, however, does not affect- their probative value. These findings simply inform us of the opinion of a jury upon undisclosed evidence — an opinion which, .was in nowise binding upon those who were not parties to the record. (Needham v. Bremner, L. R. [1 C. P.] 583; People v. Brady, supra; Gill v. Read, supra.)

Even if there had been independent proof of the facts found by the jury the result would be the same. It would then have appeared that the defendant, as well as the complainant, was unfaithful to the marriage relation; in fact, -that he was the first to break his marriage vow. That, would have prevented him from obtaining a dissolution of the marriage bond. Being unable, because of his own misconduct, to procure his release from the complainant, the duty attaching to the relation, not to permit her to become a public charge, continues. To be relieved from that- duty he must, as already stated, secure a severance of the tie or prove facts which would entitle him, if innocent, to .such severance.

There was sufficient evidence to support the direction that the defendant pay eight dollars, per week, and accordingly the judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey and Patterson, JJ., concurred.

Judement affirmed, with costs.  