184 A.D. 643 | N.Y. App. Div. | 1918
This is an action for separation on the sole ground of cruel and inhuman treatment. The decision and judgment proceed upon, that and other grounds not alleged, viz., failure properly to provide for the plaintiff and conduct on the part of defendant rendering it unsafe for plaintiff to cohabit with defendant. The complaint was not amended and the evidence relating to the grounds for separation, other than that pleaded, was received over defendant’s objection duly interposed that the evidence was not within the issues. The judgment cannot be supported by the evidence with respect to the charges not pleaded, for the nature and circumstances of the defendant’s misconduct and the time and place of each act complained of must be pleaded. (Code Civ. Proc. § 1764.)
The only evidence offered on the trial was the testimony of the plaintiff. In so far as the evidence relates to misconduct specified in the complaint, it was condoned, for the parties continued to five together down to the time of the separation, and such of it as was of a serious nature occurred many
It follows that the judgment and the findings and conclusions of law inconsistent with these views should be reversed, without costs, and appropriate findings and conclusions of law to sustain a judgment of nonsuit dismissing the complaint, without costs, and authorizing the entry of such a judgment should be made.
Clarke, P. J., Page, Shearn and Merrell, JJ., concurred.
Judgment reversed, without costs, and complaint dismissed, without costs: Order to be settled on notice.