Maryon v. Maryon , 400 N.Y.S.2d 160 ( 1977 )

In an action for a divorce on the ground of abandonment, plaintiff appeals from a judgment of the Supreme Court, Queens County, dated September 27, 1976, which dismissed the complaint. Judgment reversed, on the law, without costs or disbursements, and judgment is directed to be entered in favor of plaintiff, granting a divorce. The parties were married in 1953. In 1975 the plaintiff husband commenced an action for a divorce on the ground of abandonment (see Domestic Relations Law, § 170, subd [2]). The complaint alleged that defendant had abandoned plaintiff in March, 1954. Defendant defaulted. Plaintiff testified at the inquest in support of his complaint. By a judgment dated September 27, 1976, the court found that plaintiff’s conduct justified defendant’s departure, and dismissed the complaint. In our opinion, plaintiff was entitled to a divorce on the ground of abandonment (see Giella v Giella, 55 Misc 2d 727; Bigelow v Bigelow, 62 Misc 2d 376). Defendant had the burden of pleading and proving the defense of justification (see Bigelow v Bigelow, supra). She never raised the defense and defaulted. Although plaintiff’s testimony disclosed the possibility of a defense to the action, he was entitled to judgment because he made out a prima facie case of abandonment and defendant did not plead nor prove the defense of justification (see Domestic Relations Law, § 211; Bigelow v Bigelow, supra). In an undefended matrimonial action there is no requirement that the plaintiff must negative any defense which might possibly have been raised by the defendant (see Figueroa v Figueroa, 66 Misc 2d 257). Hopkins, J. P., Latham, Shapiro and Mollen, JJ., concur.