270 A.D. 953 | N.Y. App. Div. | 1946
On the court’s own motion, the decision of this court handed down on May 6, 1946 (ante, p. 938), is hereby amended to read as follows: Action by plaintiff husband against defendant wife for a separation on the ground of cruel and inhuman treatment. Defendant counterclaimed for a separation on the ground of abandonment, and also on the ground of failure to provide support. She appeals from so much of the judgment as denied her counterclaim. Judgment modified on the law and the facts by striking therefrom the provision denying defendant a separation on the ground of abandonment, and inserting in place thereof a provision granting her a separation on the ground of abandonment. As thus modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to the appellant, and with leave to move at Special Term in respect of the custody of the child and for such support, if any, of the defendant wife as the circumstances of the parties justify. The following additional finding of fact and conclusion of law are made: So much of defendant’s proposed finding of fact No. 30 as states that plaintiff without just cause abandoned defendant on or about October 17, 1944; and so much of defendant’s proposed conclusion of law No. 2 as grants defendant a judgment of separation against the plaintiff upon the ground that plaintiff abandoned the defendant. The decision