Opinion
May 10, 1948.
Appeal from Supreme Court, New York County.
Judgment affirmed, without costs. In addition to the findings of the Trial court, this court finds that the plaintiff condoned and forgave any acts of cruel and inhuman treatment on the part of the defendant found by the trial court.
The very findings of the trial court established certain cruel and inhuman treatment on the part of the defendant warranting a decree of separation on that ground in favor of the plaintiff ( Avdoyan v. Avdoyan, 265 App. Div. 763; Pearson v. Pearson, 230 N.Y. 141, 146; Smith v. Smith, 92 App. Div. 442; McNulty v. McNulty, 119 App. Div. 150).
Condonation as to any cruel and inhuman treatment charged was not set up as a defense, nor did the court make any finding of fact or conclusion of law to the effect that there had been condonation (see Reynolds v. Reynolds, 34 How. Prac. 346; Doe v. Doe, 52 Hun 405, 406; Fisher v. Fisher, 223 App. Div. 19, 22, affd. 250 N.Y. 313; Beebe v. Beebe, 174 App. Div. 408).
There was insufficient evidence that the separation was caused by plaintiff's act of removing some of defendant's belongings from their apartment on August 3, 1946, and barring defendant therefrom without cause of justification. Particularly is this so since it appears that defendant himself admitted having forcibly ejected plaintiff from their apartment the very next day, August 4, 1946. Moreover, the pleadings raise no specific issue (other than by way of general denial) as to what occurred on August 3, 1946.
At the very least there should be a new trial. The record presents an incomplete picture as to what took place on August 3 and 4, 1946. The occurrences on those dates should have been permitted to be fully developed in the testimony because they have a vital bearing on the issue on which the court found against the plaintiff. The judgment appealed from should, accordingly, be reversed and a new trial ordered, with costs to appellant to abide the event.
Dore, J.P., Callahan and Van Voorhis, JJ., concur in decision; Shientag, J., dissents in opinion in which Cohn, J., concurs.
Judgment affirmed, without costs. In addition to the findings of the trial court, this court finds that the plaintiff condoned and forgave any acts of cruel and inhuman treatment on the part of the defendant found by the trial court. Settle order on notice.