| N.Y. App. Div. | Nov 28, 1941
(dissenting). Although we are inclined to the opinion that the judgment in favor of the defendant on the plaintiff’s cause of action is against the weight of the evidence, that issue seems not to be important since the parties are separated under a written contract which provides for the support of the wife. We find no possible basis, however, for the judgment against the plaintiff on the defendant’s counterclaim for abandonment. The alleged abandonment consisted of a separation which occurred pursuant to a written separation agreement between the parties, the enforeibility of which is rendered doubtful by the present judgment.
The judgment, to the extent that it grants a separation in favor of the defendant husband, should be reversed and the counterclaim dismissed.
O’Malley, J., concurs.