Summary
In Traylor v. Traylor (supra) the liberality of the courts with respect to the amendment of pleadings in actions for separation was demonstrated.
Summary of this case from Garfinkel v. GarfinkelOpinion
February 18, 1957
Present — Nolan, P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ.
In an action for separation by a wife on the grounds of cruel and inhuman treatment, nonsupport and abandonment, the appeal is from a judgment granting a separation on the ground of cruel and inhuman treatment, and other relief. Judgment modified on the law and the facts by deleting from the first decretal paragraph the words "cruel and inhuman treatment" and by substituting therefor the words "nonsupport and abandonment". As so modified, judgment unanimously affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion the proof does not support a finding of cruel and inhuman treatment but would support findings of abandonment and nonsupport. The only proof of cruel and inhuman treatment was name calling, bickering, threats, and refusal to cohabit. There was no proof that respondent was made ill as a result thereof. Such conduct does not constitute cruel and inhuman treatment. The proof establishes (1) that appellant had not supported respondent for about one year prior to the trial, which was held in April, 1955, (2) that he left the marital home in May, 1954 and has not since lived with respondent, (3) that appellant, for some time prior to May, 1954, refused to cohabit with respondent (cf. Mirizio v. Mirizio, 242 N.Y. 74; Jacobsen v. Jacobsen, 205 Misc. 584) and (4) that appellant has rejected respondent's offer to return to him ( Aghnides v. Aghnides, 308 N.Y. 530; Solomon v. Solomon, 290 N.Y. 337; Campbell v. Campbell, 306 N.Y. 581). Insofar as the complaint does not sufficiently allege abandonment, it is deemed amended to conform to the proof (Civ. Prac. Act, §§ 109, 434; Neale Co. v. New York So. Coal Term. Corp., 270 App. Div. 816; Samios v. Samios, 285 App. Div. 1020).