(198 N.Y.S.) PEOPLE v. POLLOCK. (Court of Special Sessions of City of New York, Appellate Term, First Department. March 9, 1923.) 1. Disorderly conduct 9-Evidence held not to authorize order requiring defendant to pay wife stated amount each week. Evidence held not to authorize an order adjudging a husband a disorderly person, under Inferior Criminal Courts Act, § 74, and ordering him to pay his wife a stated amount each week; it not being shown that there was imminent danger of the wife becoming a pauper. 2. Courts 472(1)-Supreme Court has civil jurisdiction of rights and remedies relating to marriage contract. The ascertainment of rights and application of remedies in relation to the marriage contract are within the civil jurisdiction of the Supreme Court, and where that is all that is involved the Family Court is without jurisdiction. Kernochan, P. J., dissenting. Appeal from Family Court, Eleventh District, Borough of Manhat tan. Thomas Pollock was convicted of being a disorderly person, under Inferior Criminal Courts Act, § 74, and ordered to pay $8 a week for the support of his wife, and he appeals. Reversed, proceeding dismissed, and defendant discharged. Argued before KERNOCHĂN, P. J., and EDWARDS and McINERNEY, JJ. Gavagan & McNally, of New York City (James B. M. McNally, of New York City, of counsel), for appellant. George P. Nicholson, Corp. Counsel, of New York City (Willard S. Allen, of New York City, of counsel), for the People. EDWARDS, J. The defendant and his wife had been living apart since July, 1922. The defendant by the order appealed from has been adjudged a disorderly person for failure to provide for his wife since the separation. The order requires him to pay $8 per week for the support of his wife. These persons were married 38 years ago, and the wife is 63 years of age. The wife testified, in general terms, to intemperance of the husband, physical violence committed by him upon her, and his abandonment of her, without giving definite account of incidents constituting such offenses. One witness on her behalf testified to an assault committed by the husband upon the wife about June, 1922, stating in substance that at the same time the defendant was in a condition of drunken helplessness. The defendant testified that the final separation occurred by his wife's excluding him from their home, when he sought to enter it. A witness for the defendant testified that some 7 years ago, when she lived in the house with them, the wife repeatedly assaulted the defendant without justification, and was constantly quarrelsome and abusive in her treatment of him. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes About 3 years ago the wife commenced an action in the Supreme Court against the husband for separation. Her motion in that action. for counsel fee and alimony pending the action was denied. The subsequent history of that litigation does not appear. The two owned a piece of real property, which they sold, dividing the proceeds equally, the defendant says. She got for her share in cash $900, as she testified-$1,700, according to the defendant-and a half interest in a $4,000 purchase-money mortgage. She still has the $2,000 part of the mortgage, having spent, as she declared, all the cash. It seems from the wife's own testimony, as well as from the defendant's, that while they lived together she had control and management of the defendant's earnings. When the separation occurred, the wife left the premises where the couple had lived, paying $30 per month rent, and took apartments at a rental of $75 per month, having two boarders, who lived with her at the former place, who pay her $80 per month for their board. Where she now lives she has four rooms, which she does not use, but keeps for expected tenants. She had her husband arrested last August, whereupon, the parties being remitted by the magistrate to their own adjustment of the matter, the defendant promised his wife to pay her $9 per week, keeping the promise to the extent of making one payment only. On the hearing in the present case, the defendant said that he was ready and willing to give his wife a home and support, if she would return to him, but she declared that she would not live with him. [1] On the facts as set out in the foregoing survey, the question whether the order appealed from should stand is presented for our consideration. I think there was some evidence of misconduct of the defendant in his treatment of his wife while they lived together. Added to what the wife said, which was rather of the nature of general vituperative denunciation, is the declaration of the young woman, her witness, that she saw him beat his wife on one occasion. That her account was without color or exaggeration seems unlikely, in view of the picture of defendant's physical incompetency from intoxication presented by the witness' statement that at Mrs. Pollock's request she went out into the hall and brought the defendant in, finding him on the stairway drunk. But, since the defendant did not deny the happening of the occurrence, it is fair to conclude that he was guilty of misbehavior, yet it is reasonably certain that the infelicity of this couple's experience was not solely the husband's fault. But I think there is involved here the more important question of the relative functions of the Supreme Court and of the Family Court in the adjustment of improper conditions resulting from the conjugal relation in such cases as that contained in this record. Most persons obey the law, if it be definitely ascertainable, from motives' of preference or of prudence, and for the guidance of such persons the courts of civil jurisdiction are generally sufficient. Some persons defy the law from motives of selfishness, unrestrained by character or intelligence, and from that class for the most part come those who are held amenable to the processes and procedure of the criminal branch of our judicial system. But not all the wrongs committed by this last class are dealt with by the criminal courts; if the (198 N.Y.S.) wrong happens to be a private wrong, the remedies of the civil courts are still adequate. It is only when the evil deed affects the community that the methods and remedies of the criminal law are applied. In the light of this principle of universal application in our jurisprudence statutory provisions in any particular instance are to be construed. [2] Ascertainment of rights and application of remedies in relation to the marriage contract, as contract, and also as to matters of public policy, have been placed, and remain, within the civil jurisdiction of the Supreme Court. The Family Court has what sometimes happens to be concurrent, but never co-ordinate, jurisdiction. In the case now before us the husband is in effect made subject to a decree of separation, adjudging that he has forfeited all marital rights, and providing for enforcement against him of the obligation of support of his wife. In my opinion a case for such judicial action in the tribunal selected for this prosecution was not made out. The only change having to do with this case effected by the amendment in 1919 (Laws 1919, c. 339) of section 74 of the Criminal Courts Act (Laws 1910, c. 659) was the insertion of the provision that the wife is to be deemed the primary beneficiary in a case like this, and of certain rules of evidence that need not now be discussed. The proceeding is still distinctly of a criminal nature. This is so from its nature, and is apparent in the statute from its terms, its position in the scheme of arrangement, the officers charged with authority and duty in conducting the proceeding, and the methods and the means employed. True, the wife is regarded as the primary beneficiary, but that means simply that primarily the evil to be avoided is not the burden of support threatened to be cast upon the municipality, but the social disorder threatened by the pauperism of a dependent. It is simply an instance of the exercise of the police power of government to insure peace, good order, and general welfare. To warrant an order of this kind it must still distinctly appear that such public evil is immiIt must be shown, not only that the conduct of the defendant evinces moral turpitude, but also that public interests are endangered by the dependent person becoming subject to want, with its degrading consequences. In the present case the wife has some means and is engaged in a business which she is probably able to carry on with sufficient success to keep her from actual want under present conditions. I think this inference is further justified by the indications in the record that hers was the master mind, exercised at least in pecuniary matters in the control of the affairs of the couple when they lived together. I conclude, therefore, that the order here for revision is not supported by the facts. See People ex rel. Demos v. Demos, 115 App. Div. 410, 100 N. Y. Supp. 968; City of New York on Complaint of Itzkowitz v. Itzkowitz, 200 App. Div. 839, 191 N. Y. Supp. 919. I advise that the order appealed from be reversed on the law and the facts, and that the proceedings be dismissed, and the defendant discharged. MCINERNEY, J., concurs. KERNOCHAN, P. J. (dissenting). The evidence establishes the fact that the complainant has a home, for which she pays $75 per month rent, two boarders that pay her in all $80 per month for board and lodging, a second mortgage of $2,000, and additional rooms in her abode to rent to other roomers, so that it cannot be said that there is any immediate danger of her being in want or becoming a charge upon the public. There is also evidence to show that the separation of the complainant and defendant was caused by the misconduct of the defendant, and that the defendant has neglected to support the complainant according to his means. The question before us is this: Does section 74, subdivision (c), of the Inferior Criminal Courts Act, justify an adjudication that one is a disorderly person who neglects to support his wife according to his means in a case where the evidence shows that she is not in danger of being a public charge, nor of becoming an object of charity? I feel that this question should be answered in the affirmative, on the authority of People, on Complaint of Houtman, v. Houtman, 197 App. Div. 84, 188 N. Y. Supp. 519. The opinion in this case is especially applicable to the case before us. In his opinion Greenbaum, J., says (197 App. Div. at page 86, 188 N. Y. Supp. 521): "Defendant relies upon certain authorities which construed statutes under which a magistrate had jurisdiction to convict a defendant as a disorderly person, as they existed before the enactment of chapter 339 of the Laws of 1919. It will be observed that under the existing law a person who neglects adequately to provide for his wife or children, or 'who neglects to provide for them according to his means,' may be declared a disorderly person. The law as it now reads is in many respects radically different from the prior laws, and it confers wide discretion upon the Domestic Relations Court." Reference is also made to City of New York, on Complaint of Itzkowitz v. Itzkowitz, 200 App. Div. 839, 191 N. Y. Supp. 919, which reiterates that part of Judge Greenbaum's opinion in which he says: "The law as it now reads is in many respects radically different from the prior laws, and it confers wide discretion upon the Domestic Relations Court." I think the judgment of the magistrate should be affirmed. Judgment of conviction reversed on the law and the facts, proceedings dismissed, and the defendant discharged. (Surrogate's Court, Westchester County. March 8, 1923.) 1. Wills 466-Gift of legacies in "marks" held to refer to silver and gold currency, and not to paper currency. Where a will disposing of an estate in this country was executed in and all the legatees were residents of Germany, the term "marks," as used therein, means silver or gold German currency, and not the depreciated paper currency; it appearing that testatrix did not intend a discrimination between residuary and specific legatees as great as would exist if payment to specific legatees was made in paper currency. 2. Wills 481-Specific legacies speak as of execution of will. Where legacies are specific, a will speaks as of its execution. 3. Wills 453-Method resulting in equitable distribution favored. Where two equally convenient methods of distribution can be adopted, one resulting in an unequal and inequitable distribution, and the other resulting in an equal and equitable distribution, the latter method should be adopted. 4. Executors and administrators 303 (1)-Payment of legacies may be made in any manner giving each legatee his due proportion. Unless a particular mode of paying a legacy is prescribed by will or statute, payment may be made in any manner which gives legatee his due proportion of the estate. 5. Executors and administrators 75-Administrator held representative of creditors and legatees. An administrator is not only decedent's personal representative, but is also the representative of creditors and legatees. 6. Wills 566-Money bequest held payable in coin. A bequest of money is payable in coin, and not in paper currency. 7. Wills 457-Testator's intent considered in determining meaning of word. Whether a word is used in its technical or general sense is determined by considering which will better effectuate testator's intention. 8. Wills 455-Testator assumed to contemplate natural construction of language used. It will be assumed that testator contemplated the reasonable and natural construction of the language used, rather than a construction which would produce an absurd and illogical result. In the matter of the final judicial settlement of the account of proceedings of Leonard E. Teed, as administrator c. t. a. of Elise Voelter Hess, deceased. Will construed. George S. Ludlow, of New York City, for administrator c. t. a, SLATER, S. On October 12, 1914, the decedent executed her will in Germany and lodged it for safe-keeping with a notary public. Shortly thereafter she returned to this country, and continued to reside here until her death on January 4, 1920. The will was admitted to probate on the 15th day of July, 1920, and letters of administration c. t. a. were issued October 1, 1920. The will bequeathed the entire estate to a legatee, subject to the payment of four legacies, aggregating 18,000 marks, in these words: "I appoint my cousin Bertha Sammet née Melchior, wife of George Sammet, of Heilbronn, as my sole beneficiary (heir). For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |