Opinion
March 24, 1952.
Present — Johnston, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ.
Plaintiff husband brought this action for separation on the ground of abandonment. Defendant wife counterclaimed for separation on the grounds of nonsupport and cruelty. The Special Term had referred a motion for alimony and counsel fee pendente lite to the Trial Term. The court found that defendant abandoned plaintiff without intent to return, but was justified because of plaintiff's cruelty; that defendant left with plaintiff's consent, and his subsequent request that defendant return was not made in good faith. The court, however, dismissed without prejudice defendant's counterclaim because the pleading is insufficient to sustain an affirmative judgment as provided in rule 280 of the Rules of Civil Practice. The court also awarded custody of the three-year-old child of the marriage to defendant, directed that plaintiff pay $30 per week for the support of the child, and awarded defendant a counsel fee of $250. Plaintiff appeals. Judgment modified on the law and the facts (1) by striking therefrom the first ordering paragraph, and substituting in its place the following: "Ordered, adjudged and decreed that plaintiff have judgment on his complaint, and defendant's counterclaim is hereby dismissed, and it is further"; (2) by striking from the third ordering paragraph the word and figure "Thirty ($30.00)" and substituting therefor the word and figure "Fifteen ($15.00)"; (3) by striking out the fifth ordering paragraph. As so modified, the judgment is unanimously affirmed, without costs. The evidence adduced was insufficient to establish defendant's claim of cruelty to justify the abandonment. As plaintiff's gross earnings do not exceed $70 per week, the award of $30 per week for the support and maintenance of the issue of the marriage is excessive.