Rizzi v. Rizzi

279 A.D. 676, 108 N.Y.S.2d 324, 1951 N.Y. App. Div. LEXIS 3439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1951
• Status: Published

Opinion

Defendant’s time to answer is extended to ten days after the entry of the order hereon if plaintiff does not serve an amended complaint. The parties were living separate and apart by mutual consent prior to June 4, 1951. In our opinion, the second cause of action for nonsupport during the period while they were living apart is insufficient in the absence of (1) facts showing that defendant’s payment to plaintiff of $300 a month was inadequate (Berg v. Berg, 289 N. Y. 513; 3 Nelson on Divorce and Annulment [2d ed.], § 32.25, pp. 394 — 395); (2) allegations that plaintiff did not violate the obligations of the marriage before the voluntary separation, and that her return on June 4, 1951, was in good faith and with intent to resume the marital relation and its obligations and to carry them out in the future. (Batchelor v. Batchelor, 295 N. Y. 544.) The absence of similar allegations in the third cause of action for separation on the ground of abandonment makes that cause of action insufficient. (Solomon v. Solomon, 290 N. Y. 337.) Carswell, Acting P. J., Johnston, Adel, Wenzel and MaeCrate, JJ., concur.