249 A.D. 854 | N.Y. App. Div. | 1937
In an action for separation, the plaintiff wife alleged abandonment and cruel and inhuman treatment. The defendant pleaded justification as a defense to the charge of abandonment and counterclaimed for separation on the ground of cruel and inhuman treatment. The trial court dismissed both complaint and counterclaim on the merits. Plaintiff appeals from that part of the judgment which dismissed the complaint. Defendant does not appeal from the dismissal of his counterclaim. Judgment, in so far as it dismisses the complaint, reversed on the law, -with costs, judgment granted to the plaintiff upon her cause of action for abandonment, and matter remitted to the Special Term for the fixing of alimony, unless the parties can agree upon the amount thereof. (Risk v. Risk, 202 App. Div. 299.) In our opinion (1) the abandonment was established by the evidence and in effect conceded by the defendant unless there was justification, and (2) defendant failed to establish the defense of justification. Findings of fact and conclusions of law in conformity with this decision will be made. Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur. Settle order on notice.