Opinion
June 2, 1933.
Appeal from Supreme Court of New York County.
Frank Dalton of counsel [ William F. Ashley, Jr., with him on the brief; Ashley Foulds, attorneys], for the appellant.
Irving Kern of counsel, for the respondent.
Present — FINCH, P.J., MERRELL, McAVOY. MARTIN and TOWNLEY, JJ.
We do not think that the testimony offered at the trial justified the rendition of judgment in favor of the plaintiff and against the defendant for a separation because of any cruel treatment of plaintiff by defendant. The evidence given at the trial, taken most strongly against defendant, shows that there was no act of physical violence on the part of the defendant against the plaintiff. The evidence, at most, shows that there were frequent bickerings and quarrels between the parties, but there was no evidence of any acts of cruelty sufficient to justify a decree separating the parties from bed and board. ( Pearson v. Pearson, 230 N.Y. 141, 148; Straub v. Straub, 208 App. Div. 663; Umbach v. Umbach, 183 id. 495, 496.) While the frequent quarrels and verbal disputes between the parties may have been unfortunate, we do not think they were sufficient to justify the granting of a decree of separation.
The judgment appealed from should, therefore, be reversed, and the plaintiff's complaint dismissed, without costs.
Judgment reversed and complaint dismissed, without costs. Settle order on notice reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.