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Murdock v. Murdock

Supreme Court of New York, Appellate Division

December 28, 1911

MARTHA J. MURDOCK, Appellant,
v.
DAVID W. MURDOCK, Respondent.

Page 565

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.

COUNSEL

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 guilty 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 SPENCER 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

Page 566

parties hereto were so recently married and that the causes which lead the Court to grant a separation are causes which might be 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 the 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

Page 567

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 ...


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