Opinion
Argued January 15, 1974
Decided February 21, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALBERT H. BUSCHMANN, J.
Hugh J. Helfenstein and Alvin I. Goidel for appellant.
Bruno Schachner and Norman M. Sheresky for respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed, without costs. This court accepts the finding below, that plaintiff husband, through long acquiescence, consented to a sex-limited relationship with his wife. It is notible that the husband neither demanded a renewal of sexual relations nor threatened to terminate the marital relationship because of the abstention. Indeed, although he alleged 10 years of abstention, he conceded that he had no intention of ending the marriage until just prior to quitting the marital abode in May, 1970.
In light of these facts of consent and condonation, and also in view of the age of the parties and the duration of the marriage, the Appellate Division acted within its discretion in determining that the wife was not chargeable with "constructive abandonment" under the Domestic Relations Law (§ 170, subd. [2]). (See 1 Foster Freed, Law and The Family, New York, § 6:19; cf., e.g., Hessen v. Hessen, 33 N.Y.2d 406, decided simultaneously herewith.)
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur in memorandum.
Order affirmed.