Verdone v. Verdone , 130 N.Y.S.2d 350 ( 1954 )

In an action by a wife for separation on the ground of nonsupport, the defendant interposed a counterclaim for separation on the ground of cruel and inhuman treatment, and included therein a defense that by reason of plaintiff’s conduct and by her direction he was constrained to leave the marital domicile. After trial, the court dismissed the complaint and counterclaim, on the merits, and made no allowance for plaintiff’s support. Plaintiff appeals from the judgment entered on the decision insofar as it dismisses the complaint and fails to make an allowance for her support. Judgment, insofar as appealed from, modified on the law and the facts by striking therefrom the first and third ordering paragraphs and by adding thereto provisions directing a separation in favor of plaintiff, with costs, and awarding plaintiff $5 a week alimony from April 1, 1954, with leave to either party to move to modify the judgment as to the alimony, in the event of a change of his or her circumstances. As so modified, judgment unanimously affirmed, with costs to appellant. Findings of fact inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the proof establishes that defendant did not contribute to plaintiff’s support from June 29, 1952, until September, 1952, when ordered to do so by the court; and that defendant abandoned plaintiff on June 29, 1952, without just cause, and has not since returned to the marital domicile. Nolan, P. J., Adel, Wenzel, MacCrate and Murphy, JJ., concur.