Smith v. Smith

| N.Y. App. Div. | Mar 15, 1936

In an action for a separation, judgment dismissing the complaint upon the merits reversed upon the law and the facts and judgment directed in favor of the plaintiff granting her judgment of separation, with costs, together with alimony for plaintiff’s maintenance in the sum of thirty-five dollars per week, from the date of the entry of the judgment hereon, based upon the ground of cruelty and inhuman conduct on the part of the defendant. We are of the opinion that the record discloses such conduct on the part of the defendant as to render it improper and unsafe for the plaintiff to live with the defendant. Findings of fact 4 and 5 and the conclusion of law of the decision are reversed and plaintiff’s proposed findings of fact and conclusions of law, as set forth in the record, are found, as follows: Findings of fact 4, 5, 7, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 24, 26, 27, 28, 29, 30, 31, 32 and 33. Conclusions of law 1, 2 and 4 are also found. And this court further finds as a conclusion of law that the plaintiff is entitled to an allowance of alimi \ from the defendant for her own maintenance in the sum of thirty-five dollars p week, to begin from the time of the entry of the judgment hereon. Lazansky. P. J., Young, Davis and Adel, JJ., concur; Johnston, J., dissents and votes to affirm.