Concetto v. Concetto , 377 N.Y.S.2d 164 ( 1975 )

In a matrimonial action, the defendant wife appeals from a judgment of the Supreme Court, Queens County, dated April 17, 1974, which, after a nonjury trial, inter alia granted plaintiff a divorce. Judgment modified, on the law and the facts, by (1) deleting the first decretal paragraph thereof and substituting therefor a provision dismissing the complaint and (2) deleting the third decretal paragraph thereof and substituting therefor the following: "Ordered, adjudged and decreed that the question of support for defendant and for the male issue of the parties be reserved to the Family Court pursuant to the stipulation appearing in the record.” As so modified, judgment affirmed, without costs, and action remitted to the Special Term for the making of a further determination as to counsel fees. The husband sued for a divorce upon the ground of cruel and inhuman treatment. The proof, however, failed to establish that the name-calling and the two isolated acts of alleged violence, to which the husband testified, so endangered his physical or mental well-being as to render it unsafe or improper for him to cohabit with his wife (Domestic Relations Law, § 170, subd [1]). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.