#### Doe *v.*Doe.

*(Supreme Court, General Term, Third Department*

*Filed May 24, 1889.)*

1. Divorce—Husband and wife—Action for separation.

Cohabitation is not necessarily a condonation oí previous acts of cruelty. 3. Same—Evidence.

Evidence of acts of cruelty which have been forgiven by the injured party; is inadmissible in an action for a separation for acts of consequent ■ cruelty, as giving character to the subsequent acts, and showing that they arise from a settled and permanent mode of aciing, and not from haslv impulse.

3. Same—Decree for separation—Court cannot set apart specific HOUSEHOLD FURNITURE.

The court, in a final decree of separation, in providing for the support of plaintiff, and the education and maintenance of children, cannot set apart for the plaintiff specific household furniture, the propeity of defendant.

*Peter Cantine,*for app’lt; *Carroll Whitaker,*for resp’fc.

" Learned, P. J.

A single act of adultery is such a violation of marital obligation as to justify a decree of divorce. From the nature of the wrong it is evident that subsequent sexual cohabitation, with knowledge of the adultery, is a condonation'or forgiveness. The reason of this is manifest without explanation.

But, on the contrary, cruelty, as a ground for separation, is generally, perhaps" always, a course of conduct, not a single act. ft is hardly, therefore, possible that the injured party should, on occasion of the first wrong, separate her. self and refuse to live with the wrongdoer. The effort to endure unkind treatment as long as possible is commendable. We cannot, therefore, consider sexual cohabitation after acts of cruelty as condonation, in the sense in which it would be after an act of adultery. The cases are quite different. Of course there may be a forgiveness for cruelty which perhaps would bar an action. But it would not be just to treat mere cohabitatioti as a *forgiveness of*past cruelty in every instance. And even where there has been *365actual forgiveness enough to bar an action based on previous cruelty, still, proof of such .previous cruelty may be very important on a trial as giving character to subsequent acts; showing that they arise from a settled and permanent mode of acting, and not from hasty impulses.

For, in such cases, the question is whether it is safe and • proper for the plaintiff to live with the defendant. Her forgiveness of past unkindness or cruelty does not show conclusively that it is safe and proper for her to live with the defendant, in view of the whole course of his conduct.

Examining the present case, in view of these principles, we are satisfied that there w'ere no errors committed on the subject of condonation, to the prejudice of defendant. *Burr*v. *Burr,*10 Paige, 20, at p. 32.

The question on the merits of the case, is one almost entirely of fact; that is, whether the evidence shows such a condition of affairs between the parties, arising out of the unkind and cruel acts of defendant, as to justify the plaintiff in her demand for a separation.

Any one must see that acts which, between parties of some habits of life would pass almost unnoticed, would, among those of different habits, be unkind and cruel in a high degree. So that every case must be judged according to the circumstances and the modes of life of the parties.

This question is one which the learned judge, at the special term, was better fitted to decide on his hearing of the parties themselves and their witnesses, than we are on the appeal upon the printed case.

We have examined the evidence carefully, in order to see whether there is any ground to reverse the learned judges’ findings and decisions. It seems to us that, in such an unfortunate controversy as this is, between parties both of whom have apparently had a good reputation, and have generally maintained a good character, it is not desirable that we should give any unnecessary publicity to the details of facts. To state the words and acts of the defendant, as proved in evidence, on which the learned judge based his decision, would really be of no benefit to any one. It would only tend to perpetuate matters which should, as far as possible, be allowed to be forgotten, for the sake not only of these parties, but of their relatives and of their children.

It is enough for us to say that after an examination of all the evidence, we* have come to the conclusion that the decision of the learned judge should be affirmed on the merits of the case.

The question as to the allowance of alimony for plaintiff, ■and for her daughter Julia, has been somewhat discussed. *366It is seldom an easy matter to determine exactly what is reasonable in such cases. The court possesses the power at the future to modify the amount, should circumstances require.

We think that it was reasonable to give the plaintiff the custody of her daughter, and we do not think as the evidence in the case, that the annual allowance given to the plaintiff for herself, and that for her daughter, were excessive.

The court also allowed to the plaintiff to have for her use, and for the use of said daughter, such portion of the defendant’s household goods as the statute providés must be set apart for a widow and minor children. The defendant has two children younger than Julia, and all the children are minors. Those two remain with him. The court ap pointed two persons who were to appraise and set apart such articles, and a report was thereupon made and attached to the judgment, designating certain articles specified under the statute, and also other articles of household furniture amounting to $150.

The Code (sec. 1766) authorizes the court to provide for the support of the plaintiff, and the education and maintenance of the children. We are of the opinion that this setting apart to the plaintiff of specified household furniture is not the mode of providing for her support contempt lated by the Code. The decree seems to make a transfer of • the title of the articles so designated to the plaintiff. The ordinary duty of a husband and father is to support his wife and his children, but he is not required to transfer property to them. We think that the law in cases of separation intends to compel the husband to do substantially what he was bound to do while his wife and children were living with him; that is, to support them by supplying their daily needs, not by transferring property to them. We think, therefore, that the decree should be reversed as to the compelling the defendant to transfer to plaintiff the said articles of household furniture; otherwise it should be affirmed.

The plaintiff should have the costs of the appeal against defendant.