Kennedy agt. Kennedy.

ence is made to the decision of the court of appeals when this case was before it in review of the order for alimony (73 N. Y., 374), when the issues in the pleadings had not been determined. It was claimed by the defendant that it did not appear, from all the papers and proofs presented, that the plaintiff ought to recover, and that, therefore, alimony should be denied. The court say if the facts stated in the complaint are clearly not sufficient, if true, to constitute a cause of action, alimony cannot be granted. And it was held that it would not pass upon the merits of conflicting allegations on proofs upon a motion for alimony; that such a motion being one of discretion as to the propriety of granting it, the court would not review the exercise of that discretion in the court below. The only question, therefore, decided by the appellate court, was that the court below had the power to allow alimony, and the appeal was dismissed. The chief justice, in commenting upon the difficulty of defining in precise words what constitutes "cruel and inhuman treatment," quotes the following (1 Bishop on Mar. and Div., 717, note) as being concise and comprehensive: "There must be either actual violence committed, with danger to life, limb or health, or there must be a reasonable apprehension of such violence." Consequently, the case referred to is no authority, the case as now presented not being before the court. The decision furnishes us with the definition of "cruel and inhuman treatment," and, so far, is useful as an authority.

It seems to us from the expressive words used in the statute it is unnecessary there should be personal violence to constitute cruel and inhuman treatment. It plainly refers in terms to a species of unkind treatment accompanied by threats and words of menace, the inevitable consequence, of which, by continued indulgence, violence may reasonably be apprehended, and result to the wife, unless prevented, in danger to life, limb or health. It is, however, of the greatest importance that the cause of apprehension should not only be weighty, but such as clearly showing that the duties and

Kennedy agt. Kennedy.

obligations of the marriage life cannot be discharged. The mutual dependence of our mental and physical organizations creates a mysterious sympathy, and exists under certain conditions, that when disturbed it seems impossible to distinguish between them as to the cause and effect produced by either. The defendant's treatment of his wife was cruel and inhuman within the meaning of the statute, and such as to render it unsafe for her longer to endure his conduct and continue to cohabit with him. He on various occasions wantonly and maliciously charged her with unchastity and infidelity to her marriage vows. Shortly after the birth of a child, he reproached her with a denial that he was the father of the child. On another occasion he said "he wished he could murder her." "I will keep you here, living miserably, and I will make you live a wretched life yet." These charges of infidelity, as appears from the evidence, were frequent and continuous, and were urged maliciously and without probable cause. He declared to various witnesses "that he never believed his wife to be guilty of adultery, and never suspected her of such guilt."

The cases are too numerous for citation, that false and malicious accusations of adultery against the wife is "cruel and inhuman treatment," in the sense of the statute. The conduct of the defendant, not only in this respect, but his foul and blasphemous language and threats of violence towards her, seem to have been habitual.

Under all the circumstances of the case, we are of the opinion, as expressed in some of the cases, "that the court must not wait until the threats are carried into execution, but must interfere when the words raise a reasonable apprehension of violence." The judgment should be affirmed.

Matter of Ketchum's Application.

N. Y. COMMON PLEAS.

In the Matter of KETCHUM'S APPLICATION.

Examination of parties before trial-Code of Civil Procedure, section 872— Requisites of an affidavit on which an application is made for the examination of witnesses where no action is pending.

Since the amendment which was made in 1879 to subdivision 6 of section 872 of the Code of Civil Procedure, it is requisite and necessary, in an affidavit on which an application is made for the examination of witnesses where no action is pending, to state what the circumstances are which render it necessary for the protection of the applicant's rights that the witnesses' testimony should be perpetuated.

The meaning of the amendment to subdivision 6 is to require the applicant to show that he is in danger of losing the evidence of his right before it could be judiciously investigated. To prove that such danger exists it is incumbent on the complainant to allege that he has an interest, present or contingent, in the property, and that the defendant has or claims to have an interest. He is further bound to show that he is in danger of losing his witnesses by sickness, age, death or departure from the jurisdiction, or that his case rested upon the evidence of only one witness. Where he could at once bring a suit, he is bound to show that it has been commenced. If no action is pending, he is obliged to explain why he is not able to maintain an action, the ordinary reasons being that the right of action belonged to the adverse party, or that the adverse party had raised some impediment (an injunction for example) to an immediate trial in a court of law.

Special Term, December, 1880.

VAN HOESEN, J.-Section 872 of the Code of Civil Procedure, as originally enacted, made no change in the law respecting the perpetuation of testimony, for that section was substantially a re-enactment of article 5, chapter 7, title 3, part 3 of the Revised Statutes. The construction of that article of the Revised Statutes was settled by the adjudications of the old supreme court, of the chancellor and of the present supreme court. It is not necessary to refer more par

Matter of Ketchum's Application.

ticularly to the decisions for the amendment which was made, in 1879, to subdivision 6 of section 872, has so changed the law respecting the perpetuation of testimony that they no longer aid us in determining what allegations are requisite and necessary in an affidavit on which an application is made for the examination of witnesses where no action is pending. It is now necessary for the applicant to show to the judge by affidavit what the circumstances are which render it necessary for the protection of the applicant's rights that the witness' testimony should be perpetuated. This is a most important change in the law, for the Revised Statutes made no such requirement, it being settled that an affidavit was sufficient which contained the statements prescribed by section 34, 2 Revised Statutes, 398. In his preliminary note to chapter 9, article 1, title 3 of the Code of Civil Procedure, Mr. Throop says that he has endeavored to throw "some guards around the proceedings to examine a person expected to be made a party in order to close a door against abuses, which the original statute leaves open." The guards which he speaks of are the provision that the applicant shall set forth the circumstances which make it necessary to perpetuate the testimony. This leads us at once to inquire why it ever was necessary to perpetuate testimony. The answer is to be found in the decision of the court of chancery, for it was the necessity of the case which first led the court to entertain bills for the perpetuation of testimony. We find, on referring to the books, that it was deemed necessary to perpetuate testimony where a person interested in property was in danger of losing the evidence of his right before it could be judicially investigated. To prove that such danger existed it was incumbent on the complainant to allege that he had an interest, present or contingent, in the property, and that the defendant also had, or claimed to have, an interest. He was further bound to show that he was in danger of losing his witnesses by sickness, age, death or departure from the jurisdiction, or that his case rested upon the evidence of only one witness. Where he

Matter of Ketchum's Application.

could at once bring a suit he was bound to show that it had been commenced. If no action was pending he was obliged to explain why he was not able to maintain an action, the ordinary reasons being that the right of action belonged to the adverse party, or that the adverse party had raised some impediment-an injunction, for example, to an immediate trial in a court of law.

The meaning of the amendment to subdivision 6 is, in my opinion, to require the applicant to show substantially the same state of facts which a bill to perpetuate testimony disclosed; and I hold that it is not necessary to perpetuate testimony for an action hereafter to be brought when no reason exists why the applicant should not forthwith bring his action. Where an action has been brought the adverse party may be examined under subdivision 5 of section 872, and all that the applicant need then show is that he has a good case and that he expects to prove all or some of the facts of his case by the adverse party. Of course the formal parts of the affidavit must contain the allegations mentioned in the first four subdivisions of the section. The affidavit of the applicant states that she intends to bring an action, but she does not show that any reason exists for her postponing the commencement of the litigation. If she does not know all the facts connected with her cause of action she may, after a summons has been served, obtain an order for the examination of the defendant that she may learn from him the details which she needs to know in order to frame her complaint. But as she can sue at once, if she chooses so to do, the person whom it is sought to examine ought not to be annoyed by going through an examination which may be the beginning and the end of the applicant's proceedings.

The motion to dismiss the order for the examination will be granted; but as the question decided is a new one, no costs will be imposed.

NOTE.- Where the defendant seeks to obtain an order for the examination of the plaintiff before the answer is served, his affidavit must show