Opinion
May 7, 1941.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Judgment reversed on the law and facts, without costs, and a new trial granted. Memorandum: In the memorandum and decision subscribed by him, the learned official referee found and decided that neither the plaintiff nor the defendant was entitled to a separation and he dismissed both the complaint and the counterclaim. Having dismissed the complaint, the referee had no power or jurisdiction to direct the defendant to pay to the plaintiff the sum of thirty-five dollars per month for her support. ( Neville v. Neville, 260 App. Div. 902.) In the findings of fact made after the decision had been rendered the referee found, in substance, that the defendant neglected to support the plaintiff after the separation of the parties. The plaintiff argues that this finding is sufficient to sustain the judgment appealed from. Suffice to say that the finding, if valid, is against the weight of the evidence. The interests of justice require that the judgment be reversed and that a new trial be granted, without costs to either party. All concur. (The judgment directs the defendant to pay for the support and maintenance of plaintiff in a separation action.)