Sommer v. Sommer

248 A.D. 827, 289 N.Y.S. 18, 1936 N.Y. App. Div. LEXIS 7514

Opinion

Order modified by striking therefrom the direction for the entry of judgment against the defendant in the sum of $1,247 for alleged past and unpaid alimony, and as so modified, affirmed, without costs. We are of opinion that the finding that the reconciliation between the parties in 1928 was not a bona fide reconciliation is not justified from the evidence. It appears that the parties lived satisfactorily together after such reconciliation for at least three years. Then their relations were not so harmonious, but the plaintiff wife continued to accept support from the husband and lived in the house maintained by him until 1935. For this period she cannot compel the payment of alimony under the original decree of separation. Young, Johnston and Adel, JJ., concur; Lazansky, P. J., concurs in result. The determination herein is in accordance with the claim of appellant. Hagarty, J., dissents on the ground that when the parties became reconciled and cohabited after a judgment of separation, the judgment was annulled ipso facto.