January 31, 1966
In an action for a judicial separation, in which a judgment in favor of the plaintiff wife had been rendered after trial (see 23 A.D.2d 763, affd. 16 N.Y.2d 764), the wife appeals from an order made on October 22, 1965, in the Supreme Court, Nassau County, and entered on November 3, 1965 in Queens County, which granted the defendant husband's motion to vacate and set aside such judgment upon the ground of newly discovered evidence; and directed a new trial. Order reversed, with $10 costs and disbursements; motion denied; and judgment of separation in plaintiff's favor reinstated. In our opinion, the transcripts of the telephone tapes, relied upon by defendant as the sole ground for his motion, do not sustain the claim of a gross fraud practiced by plaintiff upon the trial court with respect to evidence on the subject matter of reconciliation. In any event, this court's modification of the judgment of separation ( 23 A.D.2d 763) did not alter the basic ground of nonsupport upon which the judgment rests. Hence, plaintiff's evidence with respect to her importunities to defendant to return home and to resume the marital relationship, and defendant's denials that such requests were made, were not of the essence on plaintiff's right to judgment for nonsupport, as they might have been had plaintiff's action been predicated upon the theory of abandonment ( Erlich v. Erlich, 278 App. Div. 244). Our finding, upon modification of the judgment, that plaintiff made a bona fide offer to resume living with defendant was relevant only to our conclusion of law that since September 1, 1963, by virtue of the enactment of section 236 Dom. Rel. of the Domestic Relations Law, a husband's liability for support continues where, without fault attributable to the wife, the parties separate by mutual consent. In view of the fact that the Trial Justice had found that the parties had separated by mutual consent, our added finding on the prior appeal made clear that the parting of the spouses was not attributable to misconduct on the wife's part. Brennan, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.