3 A.D.2d 888 | N.Y. App. Div. | 1957
Judgment insofar as appealed from modified on the law and facts by striking therefrom the first ordering paragraph thereof and inserting in place thereof the following: “ Ordered, Adjudged, and Decreed, that a judgment of separation in favor of the plaintiff and against the defendant is hereby denied, and plaintiff’s complaint is hereby dismissed on the merits ”; judgment further modified, on the facts and as a matter of discretion, by striking from the fourth ordering paragraph thereof the sum of $200 and inserting in place thereof, pursuant to section 1170-a of the Civil Practice Act, the sum of $500, to take effect as of the date of service of an amended judgment, and in all other respects judgment affirmed, with costs to defendant. Certain findings of fact disapproved and reversed and new findings made. Memorandum: This is a consolidated action for a separation sought by the respondent husband on the ground of abandonment, and by the appellant wife on the ground of cruel and inhuman treatment. We agree with the learned Official Referee that no such conduct on the part of the husband was shown as would entitle appellant to a separation. “That the parties are not mated is no ground for separation. Occasional strife, lack of domestic harmony or even mutual aversion between husband and wife are not enough. There must be proof that the acts complained of fall within the statute.” (Avdoyan v Avdoyan.