Sothern v. Sothern

184 A.D. 952

Opinion

There was a finding of non-support. Plaintiff, the wife, was decreed custody of the child. The complaint and counterclaim were both dismissed. Such dismissal left no power to direct alimony. (Robinson v. Robinson, 146 App. Div. 533; Ramsden v. Ramsden, 91 N. Y. 281.) In the case at bar, as in the Robinson case, the court entertained a hope that alimony without a formal decree separating the parties might tend toward reconciliation. However, as this court has construed section 1766 of the Code óf Civil Procedure, the statute does not so provide. The third finding of fact and the judgment are, therefore, reversed and a new trial granted, without costs. Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ., concurred.