Jury v. Jury

242 A.D. 476, 275 N.Y.S. 586, 1934 N.Y. App. Div. LEXIS 6094

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1934
• Status: Published

Opinions

Per Curiam.

On September 7, 1933, the defendant husband violently seized the plaintiff wife and threw her forcibly to the floor injuring her arms and back. This occurrence was closely followed by plaintiff’s leaving defendant’s home, and defendant’s refusal to permit her to have her clothes. We think the trial court rightly decided that this assault constituted cruel and inhuman treatment, and that it was sufficient for the granting of a judgment of separation in favor of plaintiff and against the defendant. We disapprove and reverse other findings of cruel and inhuman treatment as contrary to and against the weight of the evidence. The provision of the judgment, ordering defendant to pay plaintiff $150 counsel fees, is unauthorized and must be reversed. We find no basis, either in the pleadings, the testimony, or the course of the trial, for the provisions of the judgment which award plaintiff possession of certain personal property, direct the payment of rentals by defendant to her, adjudge that plaintiff has the right to dispossess tenants from certain real estate and re-rent same, and adjudge that defendant pay plaintiff the sum of $448.50, being one-half the amount of a joint bank account, or for the findings of fact upon which it is claimed that these provisions rest.

All concur, except Taylor and Edgcomb, JJ., who dissent in part and vote for reversal of the judgment and dismissal of the complaint, in an opinion by Edgcomb, J. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.