New York County NyArchives Court.....Rose, Esther Vs. Warren Rose 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.


ESTHER C. ROSE, Respondent, v. WARREN H. ROSE, Appellant.

Action by a wife for divorce for cruel and inhuman treatment — the conduct of 
the wife must be considered - the husband may prove the reasons for his conduct.

In an action, brought for a limited divorce on the ground of the alleged cruel 
and inhuman treatment of the plaintiff by her husband, the defendant, it 
appeared by the defendant's testimony that he strongly objected to his daughter 
keeping company with a young man named Forshaw; that he repeatedly urged these 
objections to both the plaintiff and his daughter, but that his daughter still 
continued to meet Forshaw, and received his visits clandestinely, and that the 
plaintiff, to the extent of her power, aided and encouraged her daughter in her 
conduct in this respect. 

The defendant's counsel offered evidence to show improper conduct between his 
daughter and said Forshaw, and that he had just and reasonable grounds for his 
objections to him, and that these reasons were also known to the plaintiff.

Upon the objection of the plaintiff's counsel the court excluded all this 
evidence. 

Held, that the court erred in so doing.

That it has always been deemed important in actions of this character, in 
deciding the question whether it is a proper case for a decree of separation, 
for the court to know what has been the conduct of the wife towards the husband 
as well as what his conduct has been towards her.

That the defendant had a right to show that his objections did not arise because 
of caprice or without a just cause, but that in directing his family not to 
receive the visits of the objectionable visitor he had good grounds for his 
objection.

That the defendant, when called upon to answer for his conduct towards his 
children, was entitled to prove all the circumstances attending his conduct, and 
the reason for it, in order that he might justify it.

That a husband is not bound to keep a wife in his house under all conditions and 
no matter what her conduct may be.

Appeal by the defendant from a judgment rendered upon the trial of this action 
at a New York Special Term, by the court without a jury, which was entered on 
the 10th day of May, 1888, in the office of the clerk of the city and county of 
New York; and, also, from an interlocutory judgment entered in this action on 
the 4th day of June, 1887.

This action was brought to obtain a limited divorce on the ground of alleged 
cruel and inhuman treatment. Upon the trial it appeared from the defendant's 
testimony that he strongly objected to his daughter keeping company with a young 
man named George Forshaw; that he repeatedly urged these objections to both the 
plaintiff and his daughter, but that his daughter continued to keep Forshaw's 
company, receiving his visits clandestinely; and that the plaintiff, to the 
extent of her power, aided and encouraged her daughter in her conduct in this 
respect, disregarding and defying the defendant's objections. On the trial the 
defendant's counsel offered evidence tending to show improper conduct between 
his daughter and Forshaw; and that he had just and reasonable grounds for his 
objections to him; and that those reasons were also known to the plaintiff. 
This evidence was all objected to by the plaintiff's counsel, and excluded by 
the court under exceptions by the defendant.

C. H. Hoffman, for the appellant. 

George E. Horne, for the respondent.

Van Brunt, P. J.:

It will be necessary to reverse this judgment upon the ground of errors in the 
rejection of testimony. The learned court below seems to have been of the 
opinion that the defendant had no right to prove any facts in justification of 
any acts of violence which it might be claimed he had committed towards the 
plaintiff. In other words, that the wife might, by her own misconduct, provoke 
ill-treatment upon the part of the husband, and then claim rights because of 
such ill-treatment which had been caused entirely by her own provocation. We 
know of no such rule of law. It has always been deemed important for the court 
to know what has been the conduct of the wife towards the husband, as well as 
what his conduct has been towards her, in deciding the question whether it is a 
proper case for a decree of separation. (Hopper v. Hopper, 11 Paige, 46.) And 
this seems to be a self-evident proposition, because the question whether 
treatment is cruel and inhuman, and is of such a character as to render it 
unsafe for the wife to live with the husband, depend very largely upon the 
circumstances which gave rise to such ill-treatment. If it should appear that, 
had the wife performed her duties towards her husband, she would have suffered 
no ill-treatment at his hands, it is difficult to understand upon what principle 
a court of equity could grant her relief.

The evidence in this case shows that the defendant sought to prevent the visits 
to his house of a person who was obnoxious to him, and that in this respect his 
wife and his daughter seem willfully and persistently to have disobeyed his 
injunction. Although it is conceded upon the part of the respondent that the 
husband has the right to dictate who shall visit at his house, yet it is claimed 
that he has no right to prove, upon a trial where he is accused of cruel and 
inhuman treatment, arising apparently out of the disregard of his injunctions, 
that he had reasonable grounds for his prohibition, and, therefore, it is sought 
to justify the rulings made by the court that, whatever his reasons were they 
were entirely immaterial. In this we think there was a fatal error. The 
defendant had a right to show that his objections did not arise because of 
caprice or without just cause, but that in directing his family not to receive 
the visits of the objectionable visitor, he had good grounds for his objection.

In the case at bar, when asked for the reasons which he assigned to his wife and 
daughter for his refusal, this evidence was objected to and excluded. It was 
claimed upon the part of the plaintiff that the conduct of the defendant toward 
his daughter formed part of the cruel and inhuman treatment, in respect to which 
there is a finding made by the learned court; and when the defendant sought to 
prove the cause for this treatment, his mouth was shut under an objection and he 
was prevented from showing circumstances which if true, certainly justified, 
upon his part, the severest of discipline towards this child. It seems to be 
assumed that the conduct of the wife and child may be of any character that they 
choose to make it, and the husband is bound to submit. This, however, does not 
seem to be the rule of law, nor is it the rule of good morals; and a husband, 
when called upon to answer for his conduct towards his children, is entitled to 
all the circumstances attending this conduct and the reasons for it, in order 
that he may justify it. In the case at bar the defendant was refused this right 
both in respect to the plaintiff and to his child. A husband is not bound to 
keep under his roof a wife, no matter what her conduct may be; nor is he bound 
to leave his house or submit to her conduct, whatever it may be.

In the case at bar it seems to us that a very different aspect might have been 
put upon the evidence had the defendant been allowed to prove the conduct of his 
wife and daughter towards him, and the reasons for his prohibitions against 
their visitors, which prohibitions seem to have been totally ignored both by the 
wife and daughter.

It is not necessary, in view of the conclusion at which we have arrived upon the 
main body of the case, to consider the question in regard to the amount of 
alimony which has been awarded in this case; but, upon an examination of the 
record, it would appear that the court had been more liberal than the evidence 
in the case justified.

The judgment should be reversed and a new trial ordered, with costs to appellant 
to abide the final event.

Brady and Daniels, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide final 
event.

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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