Ulster County NyArchives Court.....Doe, Vs. Doe 1889
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Source: Reports Of Cases - New York
Written: 1889

Third Department, May Term, 1889.

DOE v. DOE.

Adultery — condonation of, distinguished from condonation in case of separation 
for cruelty — evidence of former condoned acts of cruelty in an action for 
separation — alimony — household furniture should not be set off.

A single act of adultery is such a violation of marital obligation as to justify 
a decree of divorce; and subsequent sexual cohabitation, with knowledge of the 
adultery, is a condonation thereof.

The cruelty which constitutes a ground for a decree of separation is generally a 
course of conduct, not a single act; and subsequent sexual cohabitation is not a 
condonation of an act of cruelty in the sense that it is of an act of adultery.

Even where there has been a forgiveness of previous acts of cruelty sufficient 
to bar an action, proof of such previous cruelty is competent, on the trial of 
an action for separation, for the purpose of giving character to subsequent 
acts, and showing that they arose from a settled purpose and not from impulse.

In making an allowance by way of alimony, it is not proper for the court to 
direct the transfer of household furniture to the wife and daughter of the 
guilty party; it should compel the husband to support them by supplying their 
daily needs.

Appeal by the defendant from a judgment rendered at the Ulster Circuit, on a 
trial before the court without a jury, and entered in the Ulster county clerk's 
office on May 28, 1888, separating the plaintiff from the bed and board of the 
defendant forever, and giving to the plaintiff the care, custody and control of 
the daughter of the parties; directing the payment of certain sums weekly by the 
defendant to the plaintiff, and giving to the plaintiff certain articles of 
household goods and furniture.

Peter Cantine, for the appellant.

Carroll Whitaker, for the respondent.

Learned, P. J.:

A single act of adultery is such a violation of marital obligation as to justify 
a decree of divorce. From the nature of the wrong it is evident that subsequent 
sexual cohabitation, with knowledge of the adultery, is a condonation or 
forgiveness. The reason of this is manifest without explanation. But, on the 
contrary, cruelty, as a ground for separation, is generally, perhaps always, a 
course of conduct, not a single act. It is hardly, therefore, possible that the 
injured party should, on occasion of the first wrong, separate herself and 
refuse to live with the wrong-doer. The effort to endure unkind treatment as 
long as possible is commendable. We cannot, therefore, consider sexual 
cohabitation after acts of cruelty as condonation, in the sense in which it 
would be after an act of adultery. The cases are quite different. Of course, 
there may be a forgiveness for cruelty which, perhaps, would bar an action. But 
it would not be just to treat mere cohabitation as a forgiveness of past cruelty 
in every instance. And even where there has been actual forgiveness enough to 
bar an action based on previous cruelty, still, proof of such previous cruelty 
may be very important on a trial as giving character to subsequent acts, showing 
that they arise from a settled and permanent mode of acting, and not from hasty 
impulses. For in such cases the question is whether it is safe and proper for 
the plaintiff to live with the defendant. Her forgiveness of past unkindness or 
cruelty does not show conclusively that it is safe and proper for her to live 
with the defendant, in view of the whole course of his conduct. Examining the 
present case, in view of these principles, we are satisfied that there were no 
errors committed on the subject of condonation, to the prejudice of defendant. 
(Burr v. Burr, 10 Paige 20, 32.)

(Here followed a consideration of the merits of the case. After some discussion 
of the evidence the court said :)

It is enough for us to say that, after an examination of all the evidence, we 
have come to the conclusion that the decision of the learned judge should be 
affirmed on the merits of the case. The question as to the allowance of alimony 
for plaintiff and for her daughter has been somewhat discussed. It is seldom an 
easy matter to determine exactly what is reasonable in such cases. The court 
possesses the power in the future to modify the amount should circumstances 
require. We think that it was reasonable to give the plaintiff the custody of 
her daughter, and we do not think, on the evidence in the case, that the annual 
allowance given to the plaintiff for herself and that for her daughter were 
excessive.

The court also allowed to the plaintiff, to have for her use and for the use of 
said daughter, such portion of defendant's household goods as the statute 
provides must be set apart for a widow and minor children. The defendant has two 
children younger than J., and all the children are minors. Those two remain with 
him. The court appointed two persons who were to appraise and set apart such 
articles, and a report was thereupon made and attached to the judgment, 
designating certain articles specified under the statute, and also other 
articles of household furniture, amounting to $150.

The Code, section 1766, authorizes the court to provide for the support of the 
plaintiff and the education and maintenance of the children. We are of the 
opinion that this setting apart to the plaintiff of specific household furniture 
is not the mode of providing for her support contemplated by the Code. The 
decree seems to make a transfer of the title of the articles so designated to 
the plaintiff. The ordinary duty of a husband and father is to support his wife 
and his children, but he is not required to transfer property to them. We think 
that the law, in cases of separation, intends to compel the husband to do 
substantially what he was bound to do while his wife and children were living 
with him, that is, to support them, by supplying their daily needs, not by 
transferring property to them. We think, therefore, that the decree should be 
reversed as to the compelling of the defendant to transfer to plaintiff the said 
articles of household furniture, otherwise it should be affirmed.

The plaintiff should have the costs of the appeal against defendant.

Landon and Ingalls, JJ., concurred.

Judgment affirmed, with costs to plaintiff against defendant.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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