Waltermire v. Waltermire

• Decision Date: 29 June 1888
• Parties: WALTERMIRE v. WALTERMIRE.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 183

17 N.E. 739

WALTERMIRE

v.WALTERMIRE.¹

Court of Appeals of New York.

June 29, 1888.

Appeal from general term, supreme court, Second department.

Action by Edwin N. Waltermire for a decree of separation, on the ground of abandonment, against his wife, Maria Waltermire. Decree for defendant. Plaintiff appeals.

Henry W. Gilbert, for appellant.

W. Farrington, for respondent.

DANFORTH, J.

The courts were not troubled, in this case, with contradictory statements, nor the evidence of casual observers, whose inferences might be inflamed or partial, as their sympathies went with one or the other party. They have had only the testimony of the defendant, and that not given voluntarily, or as a witness in her own behalf, but on compulsion of the plaintiff, and left by him undisputed. Yet from this testimony the courts below have reached different conclusions; the trial judge relieving the plaintiff by a decree in his favor, and the general term adjudging that the plaintiff was at fault, and not only to be defeated by his own misconduct, but that the defendant was entitled to recover upon her affirmative allegations. A new trial was therefore ordered, but the plaintiff, by appealing, makes that impossible, and he consents to judgment absolute if the decision shall be affirmed. We think the evidence justified the conclusion of the general term. The parties were married in 1834; and from that time until September, 1882, nearly half a century, lived together as husband and wife, she rendering wifely service as a helpmate, in all that that term implies, until, as she alleges, compelled ‘by his faithless and hateful conduct as a husband, and his cruel and inhuman treatment, to leave his side.’ The evidence in the case was adopted by the court as the defendant's pleading. From that it appears that, in 1877, the plaintiff laid violent ‘hands upon her, led her to the door, threatened to knock her down, and struck at her twice.’ Upon another occasion, falling to the floor from sickness, ‘he said it was a pity she ever got up;’ and, again, he said, ‘I will be glad when you draw your last breath.’ He called her ‘all the bad names that belong to a bad woman,’ ‘a dirty bitch,’ ‘a liar,’ ‘a whore.’ He accused her of being ‘with different men in the neighborhood, naming several, and having with them improper intercourse.’ These are the gravest circumstances that characterize his conduct as ‘cruel and inhuman.’ There are many others which made her life miserable,...