HINMAN, J. The plaintiff contends that the defendant is an illtempered, vicious man; that his treatment of her was unbearable, and that as a consequence while with the defendant the plaintiff led a life of misery; that his ill-treatment of her culminated after a married life of two years, when the defendant by physical force tried to take the plaintiff away from a place where she was visiting to the home of his mother; that in so doing he seriously injured the plaintiff by pulling her against the door casing, injuring one of her limbs and her arms, and causing injuries across her abdomen to such an extent that he caused premature birth of a child; that he was also guilty of abandonment and of neglect and refusal to provide for her. In fact, the plaintiff claims that the judgments are sustainable under all of the four grounds mentioned in section 1161 of the Civil Practice Act.

While we can find testimony sustaining a contention that the defendant at times was ill-tempered, the record shows that his ill temper was unattended by any acts which would constitute cruel and inhuman treatment or render it unsafe and improper for her to cohabit with him, with the one possible exception, when, it is alleged, he laid his hands forcibly upon her to her injury as above noted. We therefore disapprove, as immaterial, the findings numbered 4, 5, 6, and 8. We also disapprove of findings numbered 7, 9, 10, 11, and 16, as unsustained by the testimony, and the reasonable inferences deducible therefrom.

In spite of a hasty marriage, when the defendant was not financially ready to undertake it, the parties succeeded in establishing themselves in a comfortable home in Peoria, Ill., where he was employed as a chemist at a monthly salary of $115 to $150. By dint of cooperation they were able to repay the borrowed money with which they started and to purchase their furniture and to save about $600, during their two years' stay in that place. The plaintiff became pregnant during the second summer of their stay there. Outside of an occasional outbreak of temper on her husband's part, not uncommon in the average household, during which he evidenced no violence toward her, but largely a disposition to refrain from conversation with her, and manifested other eccentricities for a day or so after the outbreak, their relations were apparently pleasant. His mother visited them for a few weeks during the second summer. One incident during her stay seems to have disturbed the plaintiff at the time, but it was a trifling thing, and the defendant consoled her and treated her kindly. Relations with the defendant's mother were not estranged by her visit, because, shortly after the mother's return, the plaintiff wrote her an affectionate letter and sent her Christmas gifts made by herself.

About February 1st of the following year, the defendant's employer made a general salary cut due to poor business. The defendant's salary was reduced about one-half. This, with the approaching birth of a child to them, led to their selling their furniture and returning to Norwich, N. Y., where they stayed at the home of the plaintiff's parents. The defendant tried to obtain employment in his chosen profession, and could have obtained it at Buffalo, but the plaintiff

(202 N.Y.S.)

wanted him to be near her during her confinement, and there was no opening for him at Norwich. He did some work around the premises of the plaintiff's parents. It is claimed by the plaintiff that there were times during February and March, while they were so living, the defendant was ill tempered toward her and her father and mother, and that they had great difficulty in getting him to his meals when they were served. There were several disputes, particularly with her parents, but unattended by violence, and finally, on March 30th, the plaintiff's mother took him to task for not coming to his meals after she had prepared them. There is a conflict in the testimony as to just what she said to him. It resulted, however, in his leaving the house with some of his personal effects and going to his mother's home in Norwich. He did not leave, however, without urging his wife to go with him. She admits that he put his arm around her and wanted her to go with him. He had no quarrel with his wife. She refused. to go with him. He returned the same afternoon for some of his property, and at that time found her feeling so badly that he had to help her move across the room. Later in the afternoon he again returned, but to his surprise found his wife, who had been feeling so poorly, had gone out. He found that she was visiting at the house of a friend, a Mrs. Myers, who lived near his mother's home. He went to Mrs. Myers' house. His wife came to the door. She herself testified that he said:

"Ruth, I want you to put your things on and come over to my mother's and hear what she has to say, and if you don't like it you don't have to stay."

She refused. She says that without further provocation he grabbed her by the right arm and pulled her toward the doorway, but she had her left hand on the door knob and she struck her right thigh against the door casing, where she "stuck"; that he then grabbed both of her arms and he pulled one way while she pulled the other until Mrs. Myers requested him to stop. He says that she started to slam the door in his face after refusing his request. It is not unreasonable to suppose that his grabbing her by the arm was to insure a longer opportunity to discuss her refusal of his request. Undoubtedly there was some struggle, but if she was bruised it is as likely that her efforts to disengage herself from his grasp produced them as that he produced them. It was an indiscreet thing for him to do, but the record is barren of proof indicating that he intended to injure her. It was a tense moment in his life. His family was being broken up. Relations with her parents had been strained. It was natural for him to wish his wife to consider living with his mother. He was temporarily out of employment, and she was soon to go to the hospital. She was unwilling to even talk the matter over with his mother. It was at best a situation wherein she preferred to finish a visit with a friend rather than to do her part toward adjusting a critical situation in their lives.

Making due allowances for her delicate condition, we think that her attitude was arbitrary and provoked him to indiscretion. We cannot say that he used more force than was reasonably necessary to over

202 N.Y.S.-35

come her resistance to his efforts to hold her within reach so that he might continue to talk to her. He followed her when she backed into the house. He stayed an hour. He continued to urge her to accompany him to his mother's, but she continued to refuse, even if accompanied by her friend Mrs. Myers. She even invited him to go back with her to her parent's home in the taxi which was ordered to take her home. Her theory of cruel and inhuman treatment was apparently an afterthought. He visited her that night and the next day at her parent's home, and she admits that either that night or the next day she told him she might go to live with him to a home which he furnished. It is claimed that the struggle at Mrs. Myers' home produced a premature birth of the child, but we can find no evidence to sustain the finding that the birth was premature. He was permitted to see her but once at the hospital. After her return to her parent's home he was denied the opportunity to see her or the child. He wrote to her several letters pleading for a reconciliation. He offered to establish a home of their own, separate from the parents of either of them. He urged that she should go with him to a minister of religion, a mutual friend, to "talk it over with him, and see if he cannot suggest the right way out of our troubles." His efforts at reconciliation were spurned. It is urged that his letters were inspired by his attorney as a means of defense to such an action as this, but they so tend to carry out his attitude at the time of the break, when she refused to accompany him from her parents' home, that we cannot ignore the apparent earnestness and sincerity of their appeal.

Our conclusion is that he did not leave her under circumstances constituting abandonment; that his subsequent neglect to provide for her and the child was justified by her own unconciliatory attitude, her refusal to live with him; that he was not cruel and inhuman in his treatment of her, and did not so conduct himself toward her as to render it unsafe and improper for her to cohabit with him, within the meaning of the statute. Therefore she is not entitled to the relief sought by her. The judgments and order should be reversed upon the law and the facts, and the complaint dismissed, without costs. The court disapproves of findings numbered respectively 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, and finds that the defendant was not guilty of cruel and inhuman treatment of the plaintiff; that there was no conduct on the part of the defendant toward the plaintiff such as to render it unsafe and improper for the former to cohabit with the latter; that the defendant did not abandon the plaintiff; and that there was no neglect or refusal of the defendant to provide for the plaintiff. Judgments and order reversed on the law and facts, and complaint dismissed, without costs.

All concur.

(202 N.Y.S.)

(207 App. Div. 465)

EVANS v. SWITCHMEN'S UNION OF NORTH AMERICA.

(Supreme Court, Appellate Division, Fourth Department. January 3, 1924.) 1. Insurance 754-Suspension from union for failure to pay dues, after tender refused, held illegal, and further tender unnecessary.

Where the representative of a switchmen's union, insuring its members, refused to accept dues from a member on the ground that he was not then working for the railroad, but the member had been unable to work because of illness, he was not required to make further tender, and his suspension for failure to pay dues was illegal.

2. Insurance 747-Member of union Illegally suspended did not forfeit rights by failing to apply for reinstatement.

A member of a labor union, which insured its members, who was illegally suspended, did not forfeit his rights, under his benefit certificate, because he failed to apply for reinstatement.

Hubbs, P. J., dissenting.

Exceptions from Trial Term, Erie County.

Action by Anna L. Evans against the Switchmen's Union of North America. The complaint was dismissed, and plaintiff's exceptions were ordered heard in the Appellate Division in the first instance. Exceptions sustained, and new trial granted.

Argued before HUBBS, P. J., and CLARK, DAVIS, SEARS, and CROUCH, JJ.

Irving W. Cole, of Buffalo, for appellant.

Kenefick, Cooke, Mitchell & Bass, of Buffalo (C. P. Franchot, of Buffalo, of counsel), for respondent.

CLARK, J. Defendant is a domestic corporation with its principal office in the city of Buffalo. It is engaged in the business of insuring its members. The action was brought on a benefit certificate issued by defendant to Harlow R. Evans, plaintiff's husband, who was a member of defendant corporation, and who held said certificate at the time of his death, November 19, 1921. At the completion of the taking of evidence the complaint was dismissed, and plaintiff's exceptions ordered heard in the Appellate Division in the first instance.

It is the claim of defendant that the certificate was not in force at the time of such death, for the reason that insured had not kept up his payments of dues, and that he was under suspension for such nonpayment at the time of his death, and because of his alleged participation in an unlawful strike in Buffalo, in violation of the provisions of defendant's constitution, and of his benefit certificate. Plaintiff was the beneficiary named in said certificate to whom payment of the benefit was to be made in case of Mr. Eyans' death.

[1] Plaintiff's husband was a railroad switchman, and joined defendant's union June 25, 1902. He paid his dues regularly, and remained in good standing for nearly 19 years, and up to and including July, 1920. In January, 1920, he became ill with a heart difficulty, which ultimately terminated in his death. After this time and up to the time of his death, he was at home the greater part of the time, and was unable to work. He was thus at home and unable to work at the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

time of the so-called outlaw strike of switchmen in Buffalo, which occurred April 7 and 8, 1920. The evidence does not show that Mr. Evans ever took part in any unlawful strike at any time.

In July, 1920, he went to the home of Mr Kreiger, in Buffalo, to pay his dues for the month of August, and had the money with him, prepared to make such payment. All his dues up to that time had been paid. Mr. Kreiger was treasurer of defendant, and members had been in the habit of paying their dues at the treasurer's residence. The treasurer's daughter answered the call of Mr. Evans and some of his associates, who had come to pay their dues in July, 1920, and on being informed by Mr. Evans that he desired to pay his dues she refused to accept them, on the alleged ground that he was not then working for the railroad. Mr. Kreiger was treasurer, and dues of members were paid to him; but his daughter was authorized to take dues in the absence of her father, and give receipts therefor that he had previously signed. He was absent from home at the time Mr. Evans called to pay his dues; but he testified that, even if he had been at home, he would not have accepted them, because his instructions forbade it.

Mr. Evans was not obliged to report his illness to defendant, for he was at all times able to pay his dues, and had never refused or negl'ected to pay them, and when they were offered to the treasurer, or the person representing him, for August, 1920, and were refused, further offer or tender of dues on the part of assured was not required. Hayner v. American Popular Life Ins. Co., 69 N. Y. 435; Bochdam v. Supreme Lodge, K. of P., 67 Misc. Rep. 407, 123 N. Y. Supp. 59; Hall v. Supreme Lodge Knights of Honor (D. C.) 24 Fed. 450; 38 Cyc. 134; 25 Cyc. 906.

The ground assigned by the learned trial court for dismissing the complaint was that the assured had not applied for reinstatement in defendant's union after his suspension. The suspension of assured for failure to pay dues that defendant would not accept when seasonably tendered was illegal, and Mr. Evans was not obliged to apply for reinstatement in an order that had illegally suspended him. He had never taken part in an unlawful strike, and he offered to pay his dues when he was still in good standing, and before the time for their payment had expired. When they were refused by the treasurer's daughter, who acted for her father, and whose instructions from defendant forbade the receipt of the dues, the assured was not obliged to do a vain thing, and keep offering to pay after one offer and refusal.

[2] Mr. Evans' suspension being without cause, and therefore being illegal, defendant could not properly claim that the assured had forfeited his rights under his certificate because he failed to apply for reinstatement.

Plaintiff's exceptions should be sustained, and a new trial granted, with costs to plaintiff to abide the event.

All concur, except HUBBS, P. J., who dissents.