Rasmussen v. Rasmussen

278 A.D. 670, 102 N.Y.S.2d 588, 1951 N.Y. App. Div. LEXIS 4300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1951
• Status: Published

Opinion

In an action for a separation on the ground of cruel and inhuman treatment, plaintiff appeals from a judgment dismissing the complaint upon the merits and granting defendant a separation on his counterclaim, on the ground of abandonment. Plaintiff also appeals from an order denying her motion to direct defendant to pay a reasonable sum for a counsel fee to prosecute the appeal from said judgment and for the expenses of said appeal. Judgment reversed on the law and the facts, without costs, and a new trial granted. The court erred in restricting the proof at the trial to the specific times and occurrences alleged in the complaint, and in refusing to permit evidence designed to show a general course of conduct by defendant. (Passera v. Passera, 276 App. Div. 852.) Order reversed on the law and the facts, without costs, and the motion granted, with $10 costs, to the extent of allowing a counsel fee in the sum of $500, to be paid within ten days after the entry of the order hereon. The appeal from the judgment having been prosecuted by plaintiff as a poor person, on the original papers and on typewritten briefs, by order of this court, that portion of the motion to require defendant to defray the expenses of the appeal will be considered academic. Nolan, P. J., Carswell, Johnston, Wenzel and MaeCrate, JJ., concur.