Opinion
October 15, 1951.
In a separation action, defendant appeals from a judgment in favor of plaintiff, granting her a separation and awarding her alimony and counsel fee. Plaintiff cross-appeals from so much of the judgment as fixes alimony and counsel fee. Judgment reversed on the law and the facts, without costs, and complaint dismissed, without costs. In our opinion, the facts established by plaintiff were insufficient to warrant a judgment of separation on any of the grounds set forth in section 1161 of the Civil Practice Act. (Cf. Smith v. Smith, 273 N.Y. 380; Pearson v. Pearson, 230 N.Y. 141, 148, and Umbach v. Umbach, 183 App. Div. 495.) No formal findings of fact were made below. The findings of fact contained in the trial court's decision are affirmed, except insofar as the court may have found that the "defendant in effect told the plaintiff to leave him"; and this court finds that such a demand was not made by defendant, nor may it reasonably be inferred from the testimony. Nolan, P.J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.