CHURCH, Ch. J.

The learned counsel for the appellant cited the case of Collins v. Collins, in this court ( 71 N.Y., 269), as a decisive authority against the plaintiff's right to alimony. In that case a marriage between the parties was alleged in the complaint. The answer admitted that the marriage ceremony had been performed, but alleged that at the time the plaintiff had a husband living, and was, therefore, incapable of contracting marriage. The plaintiff although having abundant opportunity to do so had not denied the fact alleged, and this court held that the plaintiff had not made a case entitling her to alimony for the reason that from the papers presented it did not appear that she was a wife, who alone is entitled to alimony, and who alone can invoke the jurisdiction of the court to grant a divorce. ( Brinkley v. Brinkley, 50 N.Y., 184, and cases cited.)

The question presented in this case is quite different. The action is for a limited divorce for cruel and inhuman treatment under the statute. There is no question as to the relation of the parties being that of husband and wife, but it is claimed that it does not appear from all the papers and proofs presented, that the plaintiff ought to recover, and that, therefore, alimony should be denied. If the facts stated in the complaint are clearly not sufficient, if true, to constitute a cause of action, the proposition that alimony should be denied is undoubtedly correct, because the ultimate failure of the plaintiff would be inevitable, and a trial would be an idle ceremony, and an order that the defendant should pay alimony, an unnecessary and unjust burden. But I am not aware that it has ever been decided or claimed that the court will pass upon the merits, upon conflicting allegations or proofs upon a motion for alimony, and this court will in general not review a finding of the court below upon a question of fact, and will not in any case review the exercise of discretion as to the propriety of granting alimony or the amount. The question of power in the court below is the only one reviewable. The principal allegations in the complaint are that the defendant, on various occasions since the 25th of November, 1876, "wantonly and maliciously charged the plaintiff with unchastity and infidelity to her marriage vows; that soon after the birth of a child he reproached her with a denial that he was the father of the child; that on one occasion, in December, 1876, he pointed a pistol at her head when angry, apparently with intent to kill her;" that, on another occasion, he "ordered her out of the house and said he would make it too hot for her, and threatened to murder her." She alleges these acts to be without cause or provocation and that a separation is necessary "to her own existence" and the welfare of her children. Judges and courts and elementary writers have found it difficult to define in words precisely what constitutes cruel and inhuman treatment. Among many definitions which will be found in the books, I think the following is concise and comprehensive: "There must be either actual violence committed with danger to life, limb or health, or there must be a reasonable apprehension of such violence." (1 Bishop on Mar. and Div., 717, note 4.)

In Evans v. Evans (1 Hag. Con., 35) Lord STOWELL said: "Mere austerity of temper, petulance of manners, rudeness of language, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty." These things may cause discomfort, mental anguish and suffering, but in the language of the case last cited, "the answer is that courts of justice do not pretend to furnish cures for all the miseries of human life." The cases are quite uniform in affirmance of this general doctrine, as the numerous cases cited by the respective counsel will show. The allegations in this complaint are quite general and, to a certain extent, equivocal as to the real character of the acts charged; but the question on this motion is, whether it can be affirmed as matter of law that a cause of action does not exist. If it shall appear that the threats of violence were of such a character as to induce a reasonable apprehension of bodily injury, and that the charges of infidelity were made in bad faith as auxiliary to, and in aggravation of, the threatened violence, I think this plaintiff may be entitled to relief in this action. If, on the other hand, these charges were made in good faith, and especially if the defendant had reasonable grounds for believing them true, and if the threats proceeded from mere causual ebullitions of passion and were used to emphasize the charges which the defendant had reason to believe were true, and without any real intention to inflict bodily harm, and if the plaintiff had no sufficient reason for so believing, it is clear she would not be entitled to a divorce. If a husband has reason to suspect his wife of infidelity, it is neither cruel nor inhuman to charge her with it, although personal violence is not justifiable.

We cannot pass upon the merits in reviewing this motion. That duty must devolve upon the trial court. If the allegations of the answer are true, the plaintiff has no cause of action for a divorce; but these, as well as the allegations in the complaint, must be determined by another tribunal. It must suffice for this court that we cannot determine as matter of law that the plaintiff may not establish a cause of action under the complaint. The question of condonation is also one of fact, depending upon all the circumstances.

It follows that the court below had power to allow alimony, and the appeal must be dismissed.

All concur.

Appeal dismissed.