Opinion
November 14, 1961
Judgment dismissing the wife's complaint in an action for separation, unanimously reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. The trial was concerned solely with the preliminary issue raised by defendant's affirmative defense of a valid and subsisting separation agreement entered into in November, 1955. Plaintiff contended that the separation agreement had been abandoned by the parties as a result of a reconciliation and resumption of cohabitation. At the trial, only plaintiff testified. The decision of the Trial Justice was predicated on the wife's testimony and the statement by defendant's counsel that if defendant were called to the stand he would deny plaintiff's testimony. In our opinion a new trial is necessary in the interest of eliciting all of the facts — including testimony by the husband — on the issue of the existence or abandonment of the separation agreement. We do not find in the wife's testimony alone — even if deemed denied by the husband who was not subjected to cross-examination — sufficient warrant for a finding that the separation agreement was not abandoned. A proper finding as to the abandonment of the agreement by the acts of the parties should be arrived at only after eliciting all of the facts based on the testimony of both parties. That is especially true here since plaintiff's testimony made out a prima facie case of such abandonment.
Concur — Rabin, J.P., Valente, McNally, Stevens and Eager, JJ. [ 20 Misc.2d 878.]