270 A.D. 799 | N.Y. App. Div. | 1946
Judgment and order affirmed, without costs of this appeal to either party. Certain finding of fact disapproved and reversed and new finding made. Memorandum: The unreasonable exercise of marital rights of coition made possible by the involuntary submission of the wife, even though the submission be procured without threat or violence, will sustain an action for separation especially if such acts tend to impair the mental and physical health of the wife, thereby rendering it unsafe and improper for her to longer cohabit with the husband. (Rudnick v. Rudnick, 288 Mass. 256; Britt v. Britt, 153 Pa. Superior Ct. 587; Griest v. Griest, 154 Md. 696; Reynolds v. Reynolds, 297 Mo. 447; Avdoyan v. Avdoyan, 265 App. Div. 763; Civ. Prac. Act, § 1161.). The evidence shows that the defendant subjected the plaintiff to excessive and unreasonable iexual indulgence which indulgence impaired her health and peace of mind