Brauch v. Brauch

142 Misc. 464, 254 N.Y.S. 695, 1931 N.Y. Misc. LEXIS 985

Opinion

Rodenbeck, J.

The plaintiff had a cause of action for separation based on defendant’s alleged cruel and inhuman treatment prior to May 13, 1919. This cause of action she has lost by lapse of time. The obligation to support her, however, is not gone, and she may maintain an action, for separation and support, upon his refusal to do so under the demand of October 14, 1931. The refusal to respond to this demand constituted a failure to support (Civ. Prac. Act, § 1161), and the right to a recovery by her depends upon the justification for his refusal. This cannot be determined on this motion, but depends upon the facts developed upon a trial. If the plaintiff’s offer to return is reasonable, under the circumstances, the defendant’s refusal to comply constitutes a failure to support and gives rise to a cause of action.

Motion denied, with ten dollars costs to abide the event.