Batchelor v. Batchelor
This text of 68 N.E.2d 681 (Batchelor v. Batchelor) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Before plaintiff was entitled to a judgment of separation upon the ground that defendant had failed to support her while they were living separate and apart by mutual consent, it was necessary for her to establish that she offered *545 in good faith to return to her husband and resume the marital status. Lack óf that proof required a dismissal of her second cause of action. (Solomon v. Solomon, 290 N. Y. 337. 340-341; cf. Mirizio v. Mirizio, 242 N. Y. 74, 82.) Accordingly it was error to direct judgment of separation in favor of plaintiff and against the- defendant. Insofar as the judgment directs that plaintiff is entitled to a separation and alimony it should be reversed and the complaint dismissed, without costs; otherwise the judgment should be affirmed, without costs.
The judgments should be modified in accordance with this opinion, and, as so modified, affirmed, without costs.
Loughrax, Ch. J., Lewis, Conway, Desmond and Thaoher, JJ., concur; Dye and Fuld, JJ., taking no part.
Judgment accordingly.
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Cite This Page — Counsel Stack
68 N.E.2d 681, 295 N.Y. 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batchelor-v-batchelor-ny-1946.