Schatzberg v. Schatzberg

Judgment granting plaintiff separation from defendant husband and related relief on the ground of abandonment, unanimously modified on the law and on the facts, without costs, as follows. The first decretal paragraph of the judgment is stricken and the complaint is dismissed. Plaintiff has failed to establish that the alleged abandonment was “ persistent and obstinate ” (Bohmert v. Bohmert, 241 N. Y. 446, 452). At the most there was a single, sudden argument leading to impulsive, ill-advised action by both parties. The fourth decretal paragraph is stricken and in place of its former provisions defendant is directed to pay $30 weekly to plaintiff at her residence for the support of their child, pursuant to the provisions of section 1170-a of the Civil Practice Act, the date of commencement of such payments to be fixed in the order to be entered herein. The judgment is otherwise affirmed. Settle order on notice. Appeal from order entered December 2, 1959, denying defendant’s motion to vacate the order, decree and judgment of the Supreme Court, Bronx County, entered on November 9,1959, and for a new trial, unanimously dismissed as academic. No opinion. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.