The People of the State of New York ex rel. The Commissioner of Public Charities of the City of New York on Behalf of Elizabeth Y. Prince, Respondent, v. John S. Prince, Appellant

The People of the State of New York ex rel. The Commissioner of Public Charities of the City of New York on Behalf of Elizabeth Y. Prince, Respondent, v. John S. Prince, Appellant. First Department, October 23, 1908. Husband and wife — abandonment — disorderly person — proof necessary to sustain conviction.- In order to sustain a conviction of a husband as a disorderly person for aban, doning his wife it must be shown that she is liable to-become a charge upon the public. Laughlin, J., dissented as to result upon the ground that said fact had been established. Appeal by the defendant, John S. Prince, from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 9th day of June, 1908, affirming a judgment of the first division of the City Magistrates’ Court of the' city of New York, borought of Manhattan, rendered on the 28th day of March, 1908, and also from the said judgment of the City Magistrates’ Court. Alexander Sampson., for the appellant. 'Theodore Connoly, for the respondent.' [MAJORITY — Scott, J.:] Scott, J.: The defendant appeals from an order of the Court of General Sessions affirming an order of a city magistrate adjudging the defendant to be a' disorderly person in having abandoned his wife, and ordering him to pay to the commissioner of public charities the snmef $7 a week for the support of his wife and to give a bond-in the sum of $364, or stand committed to the city prison. The order was made under section 685 of the Greater'New York charter (Laws of 1901, chap. 466), which provides that such an order may be made when a person actually abandons his wife or children in the city of New York without adequate support, or leaves them in' danger of becoming a burden upon the public., or neglects to provide for them according to his means. The alleged abandonment is said to- have taken place in' the year 1900, and the evidence is far from convincing that the separation which then took place amounted to an abandonment or to anything more" than a separation • by mutual consent. ■ Assuming, however, that: the abandonment was sufficiently shown,.it was not. shown that the wife, is liable to become a charge upon the public, and it is admitted by the respondent that, to justify the order, this must be shown, as well as the fact of abandonment. For this failure of proof the order and judgment must be reversed. Patterson, P. J., Ingbaham and Clarke, JJ.,, concurred ; Laughlin, J., dissented. [DISSENT — Laughlin, J. (dissenting):.] Laughlin, J. (dissenting):. The evidence, I think, amply sustains the charge' of abandonment and sufficiently shows that owing to complainant’s ill-health and destitute condition she is liable to become dependent on the public for-support.and maintenance. . I, therefore, vote for affirmance. Order and judgment reversed. Settle order on notice.