Opinion
February 13, 1962
In an action by plaintiff husband for a judicial separation on the grounds of abandonment, cruelty and refusal on the part of defendant wife to cohabit, in which the wife asserted a counterclaim for separation on the grounds of abandonment, cruelty and nonsupport, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County, dated April 28, 1961 and entered May 4, 1961 upon the decision of the court after a nonjury trial, which, inter alia: (a) dismissed plaintiff's complaint; and (b) granted defendant wife a separation on the grounds of plaintiff's cruelty and nonsupport. Judgment affirmed, without costs. There was sufficient evidence to warrant the finding of nonsupport. However, no findings were made as to cruelty, although the judgment was granted on that ground as well as on the ground of nonsupport. The record contains sufficient evidence to warrant finding of cruelty by reason of the assaults by plaintiff on defendant on May 4, 1955 and May 14, 1955. Accordingly a new finding to that effect is hereby made in support of the judgment. The finding of abandonment by plaintiff when he left for England on August 29, 1955 is immaterial. The judgment of separation was not granted on that ground. Beldock, P.J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.