Opinion
October 27, 1952.
Present — Carswell, Acting P.J., Johnston, Wenzel, MacCrate and Schmidt, JJ.
Action by a wife for separation on the grounds of abandonment and nonsupport. The answer, a general denial, sets up as an affirmative defense that defendant left plaintiff "as a result of an impulse of the moment" and that prior to the commencement of the action he offered to live with plaintiff and to furnish living quarters for her and a child, the issue of the marriage. The court dismissed the complaint and the affirmative defense on the merits, awarded custody of the child to the plaintiff, made an allowance for the child's support, and allowed plaintiff an additional counsel fee of $400. Plaintiff appeals from the judgment insofar as it dismisses the complaint. Judgment, insofar as appealed from, modified on the law and the facts by striking therefrom the first ordering paragraph and by substituting therefore a provision that the plaintiff be separated from the defendant, and as so modified the judgment is unanimously affirmed, with costs to appellant, and the matter remitted to the Special Term for the fixing of a permanent allowance for plaintiff's support. Defendant's testimony and conduct establish that he abandoned the plaintiff.