283 A.D. 1054 | N.Y. App. Div. | 1954
Within three months after her marriage to defendant, a man nearly twenty years older than herself, plaintiff had been hospitalized for a week, had taken a honeymoon trip to Europe, returned to this country, left defendant for her parents’ home in Indianapolis, and less than two weeks after that departure made repeated and unequivocal offers and attempts to return to defendant. Defendant disputes the bona fides of plaintiff’s offer to return, and the learned Trial Justice has granted his counterclaim for separation on the ground that plaintiff’s offer contained material reservations. However, the only evidence to sustain this ground must be found in plaintiff’s conduct during the first two and a half months of this turbulent marriage or in a short, indefinite conversation between the parties on October 23, 1952. Plaintiff’s conduct during the early, trying stages of her marriage was not of such a character as to warrant a finding that it had frozen into a permanent attitude which must brand her subsequent offers to return as made in bad faith. The conversation testified to by defendant — and flatly denied by plaintiff — is ambiguous and does not necessarily bear the conclusory interpretation put upon it by defendant. We therefore hold that the evidence in the case falls short of what is required to sustain defendant’s counterclaim for separation. Judgment unanimously modified, without costs, so as to deny and dismiss defendant’s counterclaim for separation and otherwise affirmed. Settle order on notice. Present — Peck, P. J., Dore, Callahan, Breitel and Botein, JJ.