#### THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM KEHLBECK *v.*ANDREW WALSH, Police Justice.

*Abandonment of wives by husbands im, Kings county*— *diopter 895 of 1871*— *what required to be proved under.*

Under chapter 395 of 1871, in relation to persons who abandon their wives and families in Kings county, it is not enough to authorize a conviction, to show that a husband has abandoned his wife, unless it also be shown that she has no adequate means of support, and is a burden upon the public.

Certioeari to review the conviction of the relator on a charge of abandoning his wife, under chapter 395 of 1871.

*8. L).*Lewis, for the relator.

*Wm. Sullmcm,*for the respondent. ■

Barnard, P. J.:

The relator was arrested for abandonment of his wife, under chapter 395 of the Laws of 1871. (Laws of 1871,volume 1, page 781.) By section 1 of this act the wife may be a witness, *“*but no conviction shall be had upon her testimony, uncorroborated by other testimony.” She alone testified to the abandonment. The husband, the relator, testified that she told him she would leave him and *“*support herself and me.” Before leaving it is proven that she *“*had hold of her husband and was trying to push him down; she pulled his spectacles off and broke them;” she broke up about $100 of furniture; she took what remained with her; she applied for alimony in a divorce suit, which was denied. She is thirty-nine years old, her husband is sixty-five. He proves that he has now no home and no money, is ruptured, had the piles and the rheumatism and is incapable of regular work. Earns about $200 a year and sleeps in his son’s store; she is strong and healthy and gets drunk, as was proven on the examination. One witness had “ seen her fifty times under the influence of liquor.” She threatened her husband’s life and fired *293a full plate of potatoes at Ms son. I cannot in all tMs, find any corroboration of tbe wife’s statement tbat be bad abandoned ber.

I thmk tbe conviction should be reversed.

Gilbebt and Dxkman, JL, concurred-

Gilbebt, J.:

Tbis *certiorari*brings up tbe question whether tbe evidence was sufficient to warrant tbe conviction. *(People*v. *Bd. of Assessors,*39 N. Y., 81, 88; *People*v. *Met. Police Board,*id., *506; People ex rel. S. amd U. H. R. Co.*v. *Betts et al.,*55 id., 600, and cases cited.) Such, we understand, to be tbe rule on tbis subject, as modified by recent decisions.

Tbe relator was convicted under tbe “ act in relation to persons who abandon or tM*eaten to abandon their famibes in tbe county of Kings,” passed April 11, 1871 (chap. 395), of having abandoned bis wife and left ber without adequate support, a burden on tbe public, and of having neglected to support ber. Tbis statute must be deemed to have superseded tbe previous provisions of law on tbis subject so far as tbe latter applied to tbe county of Kings *(Ross*v. *City of Brooklyn,*Ct. of App., MS.), and tbe legal effect of tbat is to remove tbe defendant from tbe category of disorderly persons as defined by tbe Kevised Statutes (1 R. S., 638, § 1) and subsequent statutes (Laws 1844, chap. 174, § 6). Under tbe statute of 1871 it is tbe default after notice to find sureties who will join in his recognizance, only, which authorizes tbe justice to make up a record of conviction of tbe accused as a disorderly person. In tbis case sureties were found. Consequently no such record of conviction was, or could have been, made up.

It is apparent, also, from tbe language of tbe statute tbat a mere neglect to support a wife does not authorize tbe proceedmg under tbe act of 1871. “Neglect to support was an ingredient of tbe offense specified in tbe section of tbe Kevised Statutes and of tbe act of 1844, above cited. It was held in *The People*v. *Pettit*(3 Hun, 416) tbat tbe recognizance is not taken as an indemnity to tbe public, provided for by tbe section of tbe Kevised Statutes cited, but tbat tbe amount named in it is a penalty imposed for tbe neglect to support. Tbat effect cannot, however, be given to *294the recognizance under the act of 1871. For the words *“*neglect to support ” were omitted in the latter act, and we think the omission was purposely made. Many wives abandon their husbands, and then invoke the summary and stringent power of a magistrate to compel their husbands to support them. Where such support is unnecessary for the public indemnity, we think, notwithstanding what was said in *The People*v. *Pettit*(supra), that a change of law throughout the State, like that made by the act of 1871, would be salutary. The common law affords no means of compelling a husband to support 'his wife otherwise than by making him liable to third persons who have supplied her with necessaries after he has improperly refused to do so, and the statute providing for the compulsory support of indigent relatives (1 E. S., 614, § 1) does not extend to husband and wife. Nor has a wife who has eloped from her husband authority to bind him for necessaries. *(Pomeroy*v. *Wells,*8 Paige, 410; *Cromwell*v. *Benjamin,*41 Barb., 558; see, also, *Certwell*v. *Hoyt,*6 Hun, 579.)

Did the relator, then, abandon his wife ? We have found no evidence warranting that conclusion. On the contrary, it satisfactorily appears that after assaulting and maltreating the husband’s person, she left him and went to live with her son, and that she has sued the relator for a divorce. The only evidence of abandonment by the relator is that the wife went to the store where he was employed and asked for support, and he ordered her out of the store, and said he did not know her. That does not prove an abandonment on his part, but merely a refusal to support her away from his home, and a desire that her abandonment of him should continue. It was her duty to offer to return and live with him under circumstances showing her willingness to discharge her duties as a wife, and then a rejection of such offer by him might be deemed an abandonment.

But even if the husband’s conduct on the occasion mentioned amounted to an abandonment, that alone is not sufficient to confer upon the magistrate jurisdiction under the act of 1871. It must be atas abandonment which leaves the wife without adequate support, and a burden on the public. The statute of 1871 was not intended to furnish a civil remedy to deserted wives, but to protect the public against the expense of supporting paupers. If, when the abandonment takes place, the larder is full, or the wife is with relatives or *295friends who continue her support, or she has means of her own, or for any cause it is not proved that she has been left without adequate support and a burden on the public, both, the case is not within the statute of 18ÍT, and the magistrate has no jurisdiction to act.

¥e think the conviction should be quashed.

Barnard, P. J., and Dykman, J., concurred.

Conviction reversed.