#### Tusi Bradley Barber, Respondent, *v.*Arthur William Barber, Appellant.

Second Department,

May 7, 1915.

Husband and wife — separation — cruel and inhuman treatment — violence provoked by plaintiff— conduct rendering cohabitation unsafe and improper.

Action for separation brought by a wife against her husband upon the grounds of cruel and inhuman treatment consisting of alleged physical violence and for conduct rendering cohabitation unsafe and improper within the meaning of the statute. Evidence examined, and held, that a decree o.f separation should be denied because whatever physical violence had been used by the defendant had been provoked by the plaintiff herself, she being in all instances the provoking party and the aggressor. *213Physical violence which a wife herself invites will not avail her as grounds for a separation.

*It*seems, that conduct which renders cohabitation unsafe and improper within the meaning of the statute implies actual violence committed with danger to life, limb or health, or a reasonable apprehension of such violence.

Thomas, J., dissented.

Appeal by the defendant, Arthur William Barber, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of August, 1914, upon the decision of the court after a trial at the Westchester Special Term.

*George W. Wickersham [Charles D. Millard*with him on the brief], for the appellant.

*Ellery E. Albee,*for the respondent.

Jerks, P. J.:

The parties upon the witness stand give such different versions of the acts charged that the physical violence of the defendant was either in offense or in defense (save in one incident), and the injuries received by the plaintiff were designed or accidental, as one or the other tells the whole truth. The learned Special Term described the defendant as of more than ordinary ability, energy and industry, precise, methodical and masterful, characteristics which do not bear as directly upon the accuracy of testimony as do those of the woman, who is described as emotional and hysterical. A reading of the evidence indicates that she was often intemperate and extravagant in statement, prone to gloss over her own faults and to magnify those of the defendant. I think that the versions of the defendant are more credible. I reach this conclusion, not alone from these characteristics of the plaintiff, but also from the naturalness of the defendant’s testimony and from his corroboration that crops out in her testimony. The parties are educated gentlefolk, who married rather late in life. The man appears as a hard-working lawyer of excellent habits. He pressed domination too far, and she demurred or resisted. There was trouble over money matters, for his income was small and his burdens heavy. His style of living required a *214rigid economy which to her seemed parsimony. She who had earned her own living before marriage, chafed at her loss of independence. He was not as considerate as he should have been, and often neglected amenities that might have conciliated her. His rule irked her. He had little tact and she had much temper. He did not neglect her or her welfare, and she remained faithful but fault-finding. Her rebellion of temper and tears found an ally in her mother, whom the defendant supported as an inmate to the house. But they grew apart and finally the plaintiff left his house and refused his entreaties to return.

Her decree rests practically upon three acts of alleged violence. My conclusion is that, in all three, she was the provoking party and in two she was the aggressor. On the first occasion she provoked her husband by throwing a knife from her hand onto the floor, with an oath. On the second occasion she assaulted him, and he but warded off her blows. And on the third occasion she attempted to force money from him forthwith in the morning, which money he promised to fetch to her that night. And she did so by clinging to him so as to impede his way out, and by loud screams. There were no personal injuries on the first occasion, those of the second occasion were accidental and due to his self-defense, and those of the third occasion she brought upon herself by resisting his attempt to free himself from her grasp and to stifle her screams, which might scandalize the passerby and the neighbors. The only occasion when the defendant laid unkind hands upon the plaintiff without justification was that of her refusal to pick up the knife. Then he sought to compel her physical obedience by force but not by chastisement. I think that he was wrong to go so far in such a trivial matter, even though she had the habit of throwing things upon the floor and had provoked him with a curse. On the second occasion, the defendant was training their little child, but had done nothing to justify the plaintiff’s interference, which encouraged the child’s disobedience. And the court found that “The defendant was unable * * * to complete his task with the child, to wit, its training, while the plaintiff remained in the room,” and that he “had previously repeatedly requested the plaintiff

*215not to interfere with him or provoke quarrels with him in the presence of the child. ” When she refused to leave the room and remained to persist in interference with a proper exercise of parental authority, he had the right to eject her, and the proof is that he used physical force only for that purpose and only so far as it was necessary. (See Schouler Husband & Wife, § 68; *Gorman*v. *State,*42 Tex. 221.) On the third occasion she was seeking to obtain money by the antics of a mad woman, and he had at least the right of “ gentle restraints ” for the time being. (2 Kent’s Com. 181; Schouler, supra, § 69.) Whenever he was assaulted he was justified in using such force as was necessary for self-defense. (Schouler, *supra,*§ 68; *People*v. *Winters,*2 Park. Cr. Rep. 10.) The violence which she invited by her own physical violence should not avail her in her suit. Bishop, in his book on Marriage, Divorce and Separation (Vol. 1, § 1642), well says: *“*Violence inflicted in a mutual contest, or ordinarily when the party complaining provoked it, is no cause for judicial interference.” Thus it appears that the only violence which she did not directly provoke by resort to violence first, is that which marked the knife incident. But the conduct contemplated by subdivisions 1 and 2 of section 1762 of the Code of Civil Procedure is that which affects the safety and propriety of cohabitation. I think that there should apply in this case the definition adopted and approved by Church, Ch. J., in *Kennedy*v. *Kennedy*(73 N. Y. 369) as ‘ ‘ concise and comprehensive, ” namely: *“ ‘*There must be either actual violence committed with danger to life, limb or health, or there must be a reasonable apprehension of such violence.’ ” (See, too, *Lockwood*v. *Lockwood,*2 Curt. Ecc. 281, Dr. Lushington; *Ford*v. *Ford,*104 Mass. 198.) Although the statute subdivides cruel and inhuman treatment, and conduct as may render cohabitation unsafe and improper, yet Kent in his Commentaries (Vol. 2 [14th ed.], p. 126), in discussion of a similar statute, says that probably the word “ unsafe ” may mean the same thing as the reasonable apprehension of bodily hurt in the English cases. And the vice-chancellor in *Mason*v. *Mason*(1 Edw. Ch. 291) notes this view of Kent and expresses the court’s inability to distinguish cruel and inhuman *216treatment from conduct that is unsafe and improper. (See *De Meli*v. *De Meli,*67 How. Pr. 27, and authorities cited.) Some light is thrown upon the nature of these quarrels and disputes by the answer of the plaintiff’s mother as to the outcome of one of their differences, when she said, “Why, they made it up as usual.” Referring to this one occasion when the plaintiff was the first to resort to physical force, the plaintiff testifies that she tried to forget the incident, that “if he had been decent it would have all blown away,” and she cannot recall whether she stayed with the defendant on that very night. Surely there was nothing in this episode that justified a finding of the cruel and inhuman treatment or of the unsafe and improper conduct contemplated by the statute. Nor was the conduct of the husband foundation for apprehension of cruel and inhuman treatment or for belief that cohabitation would be unsafe and improper as justified an invocation of the court. The plaintiff has not sustained the burden of proof that was upon her. (2 Bishop Marr., Div. & Sep. § 762; Stewart Marr. & Div. § 272.)

Further, when the misconduct of the defendant is the result of the ill-conduct of the plaintiff, the court will not decree a separation. *(Rose*v. *Rose,*52 Hun, 154; *Moulton*v. *Moulton,*2 Barb. Ch. 309; *Hopper*v. *Hopper,*11 Paige, 46; *Bedell*v. *Bedell,*1 Johns. Ch. 604; *Deisler*v. *Deisler,*59 App. Div. 211.) If any differ from me in my view of the facts as they make for the defendant, and is inclined to find that the truth is more with the plaintiff so far as the defendant’s demeanor is concerned, still I believe that it will not be denied that the wife’s conduct should bar her from this decree. The learned trial court was clear upon this feature, but did not lay the stress upon it that I do. Not only did it declare that the plaintiff was emotional and hysterical, for which she is rather to he pitied than condemned, but it found that she was most unkind to the defendant’s sister while an inmate of the house and dependent on him for support, made her place there intolerable by abuse, compelled the defendant to send her away, which he did for peace, and thereby unduly and unjustifiably increased his financial burdens. It found that the plaintiff was intemperate in conduct and lacking in self-control; *217that, with the connivance of her mother, on two occasions she took the child into a closed room and opened the gas cocks, and that when interrogated on this subject at the trial she refused to answer on the ground of possible incrimination. It found that she removed money from the defendant’s pockets at night; that she taught the child to slander its father in its prayers and persisted in so doing despite the defendant’s requests that she should not. It found that she, during the course of her married life, showed constant and ostentatious preference of her mother over her husband, and refused to have her dismissed. It found that the mother, although aware that her presence was extremely distasteful and annoying to the defendant, refused to be separated from her daughter and to live elsewhere, and that her presence contributed much to render the married life of the parties “ chronically inharmonious.” In its opinion the court says it is clear that the plaintiff “is by no means free from fault for the infelicities of their married life,” and that after their unhappiness and incongruity became established she lost few opportunities to irritate him.

Such conduct, day in and day out, is more than of the petty annoyances of married life; it may not rise to the dignity of tragedy, but it is enough to breed discord and unhappiness. “ *Outta ccivat lapidem non vi sed saepe cadendo.”*

And yet I think that these parties are not beyond reunion, that experience may convince them of the wisdom of mutual concessions whereby their quarrels may cease and they may live together in peace under the tie which we should now refuse to sever.

Stapleton and Rich, JJ., concurred; Thomas, J., voted for affirmance.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment reversed and new trial granted.