Opinion
August 27, 1979
In a matrimonial action, the parties cross-appeal from a judgment of the Supreme Court, Queens County, entered December 6, 1978 which, after a jury trial, inter alia, granted a divorce to both plaintiff and defendant, each upon the ground of constructive abandonment, and awarded counsel fees to the defendant's attorney. Judgment modified, on the law and as a matter of discretion, by deleting therefrom the first, second and fourth decretal paragraphs thereof. As so modified, judgment affirmed and a new trial granted, with costs to abide the event. We agree with defendant that Special Term erred in charging the jury that it could return a verdict in favor of both parties upon the ground of constructive abandonment, and that it further erred in denying defendant's motion to set aside such verdict when returned by the jury (see Belandres v. Belandres, 58 A.D.2d 63). We believe that under the circumstances of this case, neither party should "benefit" from these errors. Accordingly, the appropriate decretal paragraphs awarding a divorce to both parties should be deleted even though plaintiff failed to properly perfect his cross appeal (cf. Belandres v. Belandres, supra). In light of this determination the decretal paragraph authorizing the defendant to resume her maiden name must also be deleted. Hopkins, J.P., Lazer, Cohalan and Martuscello, JJ., concur.