Hofmann v. Hofmann

• Citation: 133 N.E. 450,232 N.Y. 215
• Parties: HOFMANN v. HOFMANN.
• Decision Date: 29 November 1921
• Court: New York Court of Appeals

232 N.Y. 215

133 N.E. 450

HOFMANN

v.HOFMANN.

Court of Appeals of New York.

Nov. 29, 1921.

Action by Thekla F. Hofmann against Louis B. F. Hofmann. From an order of the Appellate Division (195 App. Div. 596,187 N. Y. Supp. 141), reversing an order of the Special Term, which granted plaintiff's motion for judgment on the pleadings, and denying the motion, plaintiff by permission (187 N. Y. Supp. 938) appeals, and there is certified the question: Does the complaint herein state facts sufficient to constitute a cause of action for a separation of the parties from bed and board?

Reversed, and question answered in the affirmative.

Appeal from Supreme Court, Appellate Division, First department.

Franklin Taylor, of Brooklyn, and Joseph Zeiger, of New York City, for appellant.

Joseph A. Seidman, of New York City, for respondent.

POUND, J.

This is an action brought by wife against husband to procure a judgment separating the parties from bed and board forever for the cruel and inhuman treatment of the plaintiff by the defendant and for such conduct on the part of the defendant toward the plaintiff as may render it unsafe and improper for the former to cohabit with the latter. Code Civ. Proc. § 1762. No other cause of action is alleged, and no other relief is sought. The complaint specifies (Code Civ. Proc. § 1764) the nature and circumstances of defendant's misconduct as follows: That without the knowledge or consent of the plaintiff, and without the personal service of the summons upon her, defendant obtained a decree of divorce in the state of Pennsylvania; that the court granting such decree obtained no jurisdiction of the plaintiff, and that the pretended action was wholly null and void; that plaintiff's first knowledge or information of the decree of divorce was by the defendant, causing her to receive by mail in the city of New York a certified copy thereof, on or about November 12, 1919; that the defendant, without being divorced from plaintiff, has contracted and entered into another marriage with a woman other than plaintiff, and is living in adulterous intercourse with said woman in the city of New York, and that the defendant has caused divers persons, including the children of the parties, to be informed of the pretended decree of divorce, and of the pretended marriage of the defendant to the other woman and of his living with her, and that the defendant has represented to the children of the parties that they should meet and affiliate with the woman with whom the defendant is living. The complaint then states:

‘That the aforesaid acts of the defendant have caused the plaintiff acute mental suffering and distress and constitute the ground of cruelty and inhuman treatment and improper conduct above alleged.’

[1] The only question is as to the sufficiency of the complaint; whether allegations of adultery coupled with the course of conduct complained of amount to a statement of facts sufficient to constitute a cause of action for separation. The court below has held that the gravamen of the complaint is the adultery of defendant; that adultery and cruelty are distinct and independent charges, leading to different issues and decrees; that a complaint which alleges facts which constitute a cause of action for divorce on the ground of adultery and demands judgment for a separation merely cannot be sustained, for the reason that the charge of adultery overbearsand destroys the effect of the charge of cruelty, and the remedy for the latter charge is merged in the remedy for the former.

Adultery is not cruelty in the ordinary sense as the terms are used in connection with matrimonial actions. Adultery is an act with a third party. Cruelty is directed toward husband or wife. Under the English statute (Stat. 20 & 21 Vict. c. 85, as amended) a sentence of judicial separation ...