#### Mary P. Mossa, Appellant, *v.*Rudolph Mossa, Respondent.

(No. 1.)

First Department,

January 10, 1908.

Husband, and wife — separation — complaint stating cause of action — •• alimony pendente lite.

The complaint of a wife suing for judicial separation which alleges that the defendant compelled the plaintiff to live with his parents, that she had constant disputes with her mother-in-law, that the defendant refused to give her money and objected to her visiting her own mother and refused to provide her with money to prepare for the expected birth of a child, that the defendant’s mother accused the plaintiff of going with other men, at which the defendant stated he would believe his mother in preference to the plaintiff, that the defendant upon demand refused to provide a separate home for the plaintiff and refused' to use for that purpose a gift made by the plaintiff’s mother, ,etc., and that the plaintiff was forced to return to her mother leaving her clothes and apparel with the defendant who refused to give them up, etc., states a cause of action for separation, and entitles the plaintiff to alimony *pendente lite,*with counsel fees.

Clabke, J., dissented.

Appeal by the plaintiff, Mary P. Mossa, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York On the 8th day of August, 1907, denying the plaintiff’s motion for alimony and counsel fee *pendente lite.*

*401
      *Waldo G. Morse,*for the appellant.

*Frank Walling,*for the respondent.

Ingraham, J.:

The action was for a judicial separation, the parties being husband and wife. It appears from the affidavit of the plaintiff that the parties were married • on the 14th of July, 1906, and the defendant took the plaintiff home to live with his parents; that there was constant dispute between the plaintiff and her mother-in-law; that the defendant refused to give to the plaintiff any money and objected to her visiting her own mother; that the plaintiff having become pregnant, she requested that the defendant would give her sufficient money to enable her to prepare for the birth of their child, which he refused to do upon the ground that the plaintiff’s cousin had died before their child was born ; that during this time the defendant’s mother accused the plaintiff of going out with Other men, and when the defendant was appealed to, to protect his wife, he stated that he would believe his mother in preference to the plaintiff. The plaintiff then demanded that the defendant provide a separate home for her, to which the defendant replied that *“*in Italy the man was the master and the wife .must live where the husband wishes,” and that plaintiff would have to live with his parents, and lie would not provide any separate home ; that the plaintiff’s mother had given her $2,000 as a wedding present which she had placed in the defendant’s custody in order to start a home for them, but the defendant refused to apply it to that purpose; that the plaintiff then went to her mother, leaving her clothes and wearing apparel with the defendant, and when they were sent for, the defendant replied :. “ You (plaintiff) have a Home with my parents, the door is open, but you cannot take any clothes from here. I am master; ” that subsequently the defendant, accompanied by his parents, removed from the State of Hew York to the State of Hew Jersey, where he now resides, and he has failed and refused to » contribute to the plaintiff’s support' in any way.

I think that if these facts are true the plaintiff was justified in leaving the defendant’s parents’ house, and that the defendant, in *402refusing to provide her with a home, or 'support her, was guilty. of. ■abandonment which justified a judgment of separation.

The defendant denies that the .plaintiff gave him $2,000, the wedding present received by the plaintiff from her mother, but admits that on the evening prior to the marriage the .defendant received as a wedding gift from the' plaintiff’s mother $350 which the defendant alleges he used for a wedding trip. The defendant then says that he is very desirous that the plaintiff should return ■ and live with him, and he is willing.and has always been willing to furnish a house separate and apart from his relatives; but he has furnished no such home and has done nothing, and he does not •appear to deny that the plaintiff constantly requested it during the time that she lived with his mother, and that he did not then and has not since that time' taken any steps in that direction.

The court denied the motion on condition that the defendant, within ten days after the entry of the order, serve upon the plaintiff or her attorney a written offer to provide a suitable home for the plaintiff and their child.

I think that the court should have provided for a reasonable sum for the support of the plaintiff and her child until the action could be tried. There does not seem to be any doubt but that if the defendant had provided a home for his wife, instead of compelling her to live with his parents, this whole difficulty would have been avoided. I do not think that any woman is compelled to submit to the treatment that she received from the defendant’s parents, if her statement is true.

I think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted requiring th'e defendant to .pay to his wife, six- dollars per week alimony and fifty dollars counsel fee.

Patterson, P. J., Laughlin and Scott, JJ., concurred; Olabke, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs as stated in opinion.