185 N.E. 693 | NY | 1933
This action was brought by a wife against her husband to procure a separation, on the ground that the husband had treated the wife in a cruel and inhuman manner. The husband denied that he had so treated his wife, alleged that she had treated him with cruelty, and demanded a judgment of separation from her. The trial court, holding that neither side had shown cause for a separation, dismissed the complaint and the answer. However, in its judgment, the court made provision that the wife should have custody and control of the child of the marriage, and that the husband should make weekly payments to the wife for the support, maintenance and education of the child. The contention, made upon this appeal, is that these provisions were improperly inserted in a judgment denying to either party the principal relief of a legal separation.
It is provided in section 1164 of the Civil Practice Act that in an action for separation brought by the wife, the court, "in the final judgment of separation" may give *443 such directions as may be proper. In particular it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage. "And the court, in such an action, may render a judgment compelling the defendant to make the provisions specified in this section where, under the circumstances of the case, such a judgment is proper, without rendering a judgment of separation."
The case of Davis v. Davis (
The holding in the case of Davis v. Davis (supra) has never been reversed or questioned. On the contrary, the case has but recently been cited with approval in Finlay v. Finlay
(
The judgment of the Appellate Division and that of the Special Term should be modified by striking therefrom the provisions for the support of the child, and as so modified the judgment of the Appellate Division should be affirmed.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN and CROUCH, JJ., concur; HUBBS, J., not voting.
Judgment accordingly. *445