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Judgment of the Supreme Court, Queens iCounty, dated July 5, 1967, which granted plaintiff a separation and inter alla awarded her alimony and counsel fees, reversed, on the law and the facts and in the interests of justice, without costs, and a new trial granted. Plaintiff’s proof was insufficient to warrant the relief granted by the trial court. No proof was adduced by plaintiff that defendant’s conduct substantially impaired her health; and the isolated acts relied on by plaintiff were not in themselves sufficient to justify a decree of separation (Schapiro v. Schapiro, 27 A D 2d 667; Smith v. Smith, 273 N. Y. 380; Pollitzer v. Pollitzer, 188 App. Div. 861; Davis v. Davis, 1 A D 2d 675). Nevertheless, plaintiff may have curtailed her proof with respect to the grounds of separation and in the interests of justice we believe that a new trial should be granted so that full opportunity will be given to both parties to develop their proof. Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.
Document Info
Filed Date: 12/18/1967
Precedential Status: Precedential
Modified Date: 11/1/2024