Eckerson v. Eckerson

283 A.D. 969, 130 N.Y.S.2d 803, 1954 N.Y. App. Div. LEXIS 5949

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1954
• Status: Published

Opinion

In an action by the wife for a separation on the grounds of abandonment and failure to support, judgment entered in favor of defendant on the merits, affirmed, without costs. No opinion. Adel, Acting P. J., Wenzel, MacCrate and Murphy, JJ., concur; Beldock, J., dissents, votes to reverse the judgment dismissing the complaint and to grant judgment of separation to plaintiff on the ground of nonsupport, and to award her alimony at the rate of $65 a week, with the following memorandum: The complaint asks for separation on the grounds of abandonment and nonsupport. The trial court found that defendant failed to support plaintiff prior to the commencement of this action, yet the majority has concluded to affirm this judgment dismissing the complaint. The basis for that determination appears to be that the parties were living apart by consent and there was no offer by plaintiff to return. (Solomon v. Solomon, 290 N. Y. 337; Batchelor v. Batchelor, 295 N. Y. 544.) In my opinion, those cases are distinguishable from the ease at bar. In those eases the wife was at fault; the wife left the husband, and the husband consented to the separation. Under those circumstances, the wife is not entitled to support unless she offers to return. Here the husband was the one who asked for the separation, and the wife consented. To require the wife to offer to return to the husband under such circumstances would be to require a useless act. There is no showing or finding that plaintiff was in any way at fault. In addition, the husband in thio ease not only demanded the separation from plaintiff but also promised to support her, a fact which was not present in the cases cited.