Opinion
Argued October 30, 1885
Decided November 24, 1885
Calvin Frost for appellant. James P. Sanders for respondent.
This was an action by a husband against his wife for a separation on the ground of abandonment and cruel and inhuman treatment. Upon the trial the evidence was somewhat conflicting, and the findings in favor of the husband by the referee, confirmed by the court, both at the Special Term and the General Term, conclude us. The proof showed a clear case of abandonment by the wife without sufficient justification, and even at the trial she testified that she had refused to live with her husband, and "intended to carry it out." The case against the wife for a separation was so clear that upon the argument before us her counsel stated that he did not expect or ask to have the judgment for a separation reversed, but he asked to have it so modified as to give the wife alimony and the custody of the two younger children.
In a case like this, where the husband has judgment for a separation, there is no power in the court to order an allowance to the wife for her support. (Code, § 1766; Perry v. Perry, 2 Barb. Ch. 311; Davis v. Davis, 75 N.Y. 221.) It is true that it appears that the husband took or received considerable sums of money which belonged to the wife. But that does not authorize the court to make to her the allowance claimed. If he still remains indebted to her for such money, she can compel payment by action.
As to the children, the court below on all the facts of the case exercised its discretion in awarding their custody to the husband until the further order of the court. In disposing of the custody of minor children the court consults mainly the welfare of the children. It is open to her to satisfy the court, if she can upon any future application, that the welfare of the two younger children will be best promoted by placing them in her custody. Until she can do so the judgment must stand as rendered. There were no material errors prejudicial to the defendant upon the trial in any of the rulings of the referee, and the judgment should, therefore, be affirmed, but without costs.
All concur.
Judgment affirmed.