Schaeffer v. Schaeffer

Appellate Division of the Supreme Court of New York

Schaeffer v. Schaeffer

1 A.D.2d 904, 149 N.Y.S.2d 773, 1956 N.Y. App. Div. LEXIS 6051

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 1956

StatusPublished

Cited by1 cases

This text of 1 A.D.2d 904 (Schaeffer v. Schaeffer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schaeffer v. Schaeffer, 1 A.D.2d 904, 149 N.Y.S.2d 773, 1956 N.Y. App. Div. LEXIS 6051 (N.Y. Ct. App. 1956).

Pincite

Opinion

In an action by a wife for separation, in which her husband counterclaimed for a separation, the appeal is from a judgment granting a separation to the wife, dismissing the counterclaim, awarding $35 a week alimony and $200 additional counsel fee, and directing payment of an unpaid balance of counsel fee. Judgment reversed, without costs, and a new trial granted. Assuming that the testimony by the respondent as to cruel and inhuman treatment, in the absence of physical violence or threat thereof, would be sufficient to satisfy the requirement that appellant’s behavior might reasonably be said to have affected respondent so seriously, physically or mentally, as to impair her [905]*905health (cf. Krugman v. Krugman, 286 App. Div. 1029, and Booke v. Booke, 1 A D 2d 782), there was no explanation for respondent’s failure to produce the doctor who, according to her testimony, could corroborate that testimony (see, e.g., Averett v. Averett, 189 App. Div. 250, affd. 232 N. Y. 519). Moreover, while the complaint alleged two causes of action based on cruel and inhuman treatment and on abandonment plus elements of a cause of action based on nonsupport, Special Term stated that the action was “ one for separation commenced * * * on the ground of cruel and inhuman treatment” and held that the respondent “ has established the allegations in her complaint as to cruel and inhuman treatment” and that the appellant “has not established the allegations in the counterclaim ”. No formal findings were submitted or signed. In view of the circumstances in this ease, a new trial will enable the respondent to produce the doctor and enable the prevailing party to procure more adequate findings (see, e.g., Weinger v. Weinger, 277 App. Div. 1043; Manzo v. Manzo, 1 A D 2d 678; cf. Hemphill v. Hemphill, 278 App. Div. 952, and Mario v. De Oteris, 275 App. Div. 790). Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.

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In an action by a wife for separation, in which her husband counterclaimed for a separation, the appeal is from a judgment granting a separation to the wife, dismissing the counterclaim, awarding $35 a week alimony and $200 additional counsel fee, and directing payment of an unpaid balance of counsel fee. Judgment reversed, without costs, and a new trial granted. Assuming that the testimony by the respondent as to cruel and inhuman treatment, in the absence of physical violence or threat thereof, would be sufficient to satisfy the requirement that appellant’s behavior might reasonably be said to have affected respondent so seriously, physically or mentally, as to impair her [905]*905health (cf. Krugman v. Krugman, 286 App. Div. 1029, and Booke v. Booke, 1 A D 2d 782), there was no explanation for respondent’s failure to produce the doctor who, according to her testimony, could corroborate that testimony (see, e.g., Averett v. Averett, 189 App. Div. 250, affd. 232 N. Y. 519). Moreover, while the complaint alleged two causes of action based on cruel and inhuman treatment and on abandonment plus elements of a cause of action based on nonsupport, Special Term stated that the action was “ one for separation commenced * * * on the ground of cruel and inhuman treatment” and held that the respondent “ has established the allegations in her complaint as to cruel and inhuman treatment” and that the appellant “has not established the allegations in the counterclaim ”. No formal findings were submitted or signed. In view of the circumstances in this ease, a new trial will enable the respondent to produce the doctor and enable the prevailing party to procure more adequate findings (see, e.g., Weinger v. Weinger, 277 App. Div. 1043; Manzo v. Manzo, 1 A D 2d 678; cf. Hemphill v. Hemphill, 278 App. Div. 952, and Mario v. De Oteris, 275 App. Div. 790). Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.

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Bluebook (online)

1 A.D.2d 904, 149 N.Y.S.2d 773, 1956 N.Y. App. Div. LEXIS 6051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaeffer-v-schaeffer-nyappdiv-1956.

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