Berman v. Berman , 277 A.D.2d 560 ( 1950 )

Per Curiam.

Plaintiff has been awarded a judgment of separation on findings of cruel and inhuman treatment and such conduct on the part of defendant as renders it unsafe and improper for plaintiff to live with him. Undoubtedly the court believed plaintiff’s testimony, as against the denials and counter-charges of defendant, and it would seem that such conduct on the part of defendant would justify plaintiff’s leaving him and suing for a separation. Our difficulty is with the fact that plaintiff'has not left the apartment in which both parties reside, and that during all the time of her complaints and even at the time of trial and since the trial plaintiff continued to reside in the same apartment with defendant. It is true that the parties have not been living together as husband and wife and that they have been living as separate lives as two people could do within the confines of a small apartment.

We think it is contrary to the policy of the law and incongruous to separate parties judicially who have not • separated themselves. Perhaps good reason exists why the parties should separate by mutual agreement or why plaintiff should leave their common place of abode and sue for a separation. We are not willing, however, to sanction a judgment of separation under the circumstances shown here, and existing even up to the time of trial, and countenanced by a judgment which seems to contemplate that the parties will continue to occupy the same apartment.

The judgment should be reversed and the complaint dismissed.