
    Supreme Court — General Term — Third Department.
    May 8, 1894.
    PEOPLE v. PHILIP W. FREDERICK.
    (60 St. Rep. 195; 78 Hun, 36.)
    Disorderly person—Support op wipe.
    In a prosecution for being a disorderly person, in that the defendant failed to support his wife, it is a question for the trial magistrate whether his offer to support his wife was bona fide.
    Appeal from a judgment of conviction for being a disorderly person.
    Frank L. Anderson (H. Peck, of counsel), for appellant.
    H. D. Wright, District Attorney, for respondent.
   PUTNAM, J.

Defendant was convicted before a magistrate as a disorderly person, under the provisions of section 899 of the Code of Criminal Procedure, and the judgment of conviction was affirmed by the court of sessions of Fulton county. The complainant and defendant were married on January 1st, 1891, and it was alleged that defendant had abandoned his wife, and failed to support her, since April 1st, 1892. There was testimony before the magistrate tending to establish the truth of the charge made. But the defendant, on the trial, proved that on several occasions he had offered to provide the complainant witu a home and support at his father’s house, and that she had declined to accept such offer; and defendant testified that he was unable to furnish her with support at any other place. The appellant insists that the offer and complainant’s refusal to accept it was an answer to the charge made against him, and that the magistrate erred, therefore in rendering a judgment of conviction, within the cases of Lutes v. Shelley, 40 Hun, 197; People v. Pettit, 74 N. Y. 320. In the cases cited the offers of the husband were held to have been made in good faith, and tendered a suitable home for the wife; and hence, if she failed to accept the support so provided by the husband, he could not be deemed a disorderly person. The rule laid down in those cases must govern this if the evidence was such that the magistrate could have found that defendant’s offers were made in good faith, and not with a fraudulent intent to evade the provisions of the statute. It was shown on the trial that the defendant had offered to provide a home and support for the complainant at his father’s house. That she went there on December 29th, 1891, and saw defendant, his father, and sisters. She told the defendant that she had come to see the rooms prepared for her. He answered he was sick, and could not show them that day, and closed the door, leaving her on the outside. On January 4th, 1892, she again went there, and was told by appellant’s mother that she wanted her to get out of there, and the door was closed in her face. Afterwards complainant again went to the house of appellant’s father, and said to defendant’s mother who came to the door: “Philip told .me here was where I was to get my support, and I have now come to accept his offer.” She was unable to obtain access to the house, and was told to go home. The witness Palmateer also testified to the statement of defendant that, “as circumstances stood now, his hair would be grayer than it is now before he would support or live with his wife.” Whether complainant, after trying three times unsuccessfully to obtain admission to the house of defendant’s father, should have made another attempt, was, we think, under the evidence a question for the magistrate. He could very well find, under -the circumstances of the case," that defendant’s offer was insincere, and made with intent to evade the provisions of the statute. We think this case is similar to that of People v. Harris, 38 St. Rep. 316; 14 N. Y. Supp. 830, and, as held in that case, it was a question for the magistrate to determine whether the offers of the appellant were made in good faith, and with intention to carry out the offer; “and that under the circumstances, a conviction based on the belief .that it was not would not be interfered with. ” We have examined the various exceptions taken on the trial, and the rulings of the magistrate, and are of opinion none of them require a reversal of the judgment. It follows that the judgment should be affirmed.

All concur.  