Opinion
February 6, 1914.
Eli J. Blair, for the appellant.
Edward Snyder, for the respondent.
The unfortunate family differences do not arise from any immorality or any failure by the husband in his duty of support. They had lived happily together for over fifteen years. His earnings went into a double apartment house, the title to which stands in the names of both. To eke out the income the wife took a boarder and let out a furnished room. The husband's employment as a ferry boat engineer, where he was on duty often at night, required him to go and come at unusual hours. Thus the wife had a double burden of preparing the meals for the boarder, and sometimes again for the husband as he should come in later. Defendant, therefore, wished to give up taking boarders and have the privacy that they had before enjoyed. The wife's contrary view led to domestic dissensions. But the husband who maintains the family has a right to say who shall reside with them in the home, and may refuse to have boarders whose requirements interfere with the family comfort and whose presence excites comment on the part of the neighbors. Even if they jointly own the house, the husband still has the right and duty to regulate the household so far as to say what persons, outside of the family, are to share the home. Throwing down a teacup, and other like acts, do not rise to the dignity of cruel and inhuman conduct (14 Cyc. 600, 601), and did not justify plaintiff in deserting defendant, taking with her the children and the household furniture. Defendant's proposed findings of fact numbered "Second" and "Third" should, therefore, be granted, and the finding of fact numbered "Fifth" in the decision is accordingly reversed as not within the allegations of the complaint and as unsupported in the testimony. The discretion of the court, however, should not be exercised to grant the husband a separation, as his answer prayed, but the complaint should be dismissed, so as to leave the parties to become again reconciled after this temporary estrangement.
The judgment of separation and alimony should be reversed, and the complaint dismissed.
JENKS, P.J., RICH, STAPLETON and PUTNAM, JJ., concurred; THOMAS, J., dissented.
Judgment of separation and alimony reversed and complaint dismissed. Order to be settled before Mr. Justice PUTNAM.