Vernes v. Vernes

232 A.D. 707

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1931
• Docket: Appeal No. 1
• Status: Published

Opinion

Order, on reargument, in so, far as appealed from, reversed upon the law and the facts, without costs, and motion denied, without costs. We are of opinion that in an action for a separation the conduct of the plaintiff wife subsequent to the acts of which she complains in her complaint is material to the issue, and the defendant’s allegations of this conduct in his answer were erroneously stricken out. This is a statutory action tried in equity, and it well may be that the plaintiff, assuming her cause to have been just in the beginning, may have forfeited her right to relief by her subsequent misbehavior. Especially is this true when she demands judgment not only separating her from the defendant’s bed and board, but requiring the defendant to support her, when the conduct attributed to her by the defendant in his answer tends to reduce, if not destroy entirely, the defendant’s earning capacity. Lazansky, P. J., Kapper, Hagarty, Carswell and Scudder, JJ., concur.