McLaughlin v. McLaughlin

29 A.D.2d 554, 285 N.Y.S.2d 792, 1967 N.Y. App. Div. LEXIS 2717

Opinion

Judgment of the Supreme Court, Queens iCounty, dated July 5, 1967, which granted plaintiff a separation and inter alla awarded her alimony and counsel fees, reversed, on the law and the facts and in the interests of justice, without costs, and a new trial granted. Plaintiff’s proof was insufficient to warrant the relief granted by the trial court. No proof was adduced by plaintiff that defendant’s conduct substantially impaired her health; and the isolated acts relied on by plaintiff were not in themselves sufficient to justify a decree of separation (Schapiro v. Schapiro, 27 A D 2d 667; Smith v. Smith, 273 N. Y. 380; Pollitzer v. Pollitzer, 188 App. Div. 861; Davis v. Davis, 1 A D 2d 675). Nevertheless, plaintiff may have curtailed her proof with respect to the grounds of separation and in the interests of justice we believe that a new trial should be granted so that full opportunity will be given to both parties to develop their proof. Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.