The People of the State of New York ex rel. Marie Boettcher, Respondent, v. Otto Boettcher, Appellant

The People of the State of New York ex rel. Marie Boettcher, Respondent, v. Otto Boettcher, Appellant. First Department, December 30, 1910. Crime — disorderly person — abandoning wife. Where a wife abandons her husband, who always has been and still is able to support; her, and she is in no danger of becoming a public charge, he should not be convicted as a disorderly person. Appeal by the defendant, Otto Boettcher, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered on the 25th day of October, 1910, affirming a judgment of a city magistrate of the city, of New York convicting the defendant as a disorderly person. William Brunner, for the appellant. Theodore Oonnoly, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This is an appeal from an order of one of the judges of the Court of General Sessions affirming a judgment of a city magistrate convicting defendant as a disorderly person. The judgment of conviction shows that appellant was charged with and convicted of abandoning relator, his wife, and leaving her without proper means of support, so that she was liable to become a burden upon the public. The evidence before the city magistrate showed clearly tha.t it was the wife who abandoned the husband ; that the latter always had been and still was able and willing to support her, and that she was in no danger of becoming a public charge. The case falls precisely within the rule declared by tins court in People ex rel. Demos v. Demos (115 App. Div. 410). The order appealed from was erroneous, and both it and the judgment of conviction must be reversed. Present Ingraham, P. J., Clarke, ■ Scott, Miller and Dowling, JJ. ■- Order and judgment reversed. Settle order on notice.