Waldman v. Waldman

Appellate Division of the Supreme Court of New York

Waldman v. Waldman

71 A.D.2d 951, 420 N.Y.S.2d 15, 1979 N.Y. App. Div. LEXIS 13209

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

DecidedAugust 27, 1979

StatusPublished

Cited by2 cases

This text of 71 A.D.2d 951 (Waldman v. Waldman) 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

Waldman v. Waldman, 71 A.D.2d 951, 420 N.Y.S.2d 15, 1979 N.Y. App. Div. LEXIS 13209 (N.Y. Ct. App. 1979).

Pincite

Opinion

—In a matrimonial action, the parties cross-appeal from a judgment of the Supreme Court, Queens County, entered December 6, 1978 which, after a jury trial, inter alia, granted a divorce to both plaintiff and defendant, each upon the ground of constructive abandonment, and awarded counsel fees to the defendant’s attorney. Judgment modified, on the law and as a matter of discretion, by deleting therefrom the first, second and fourth decretal paragraphs thereof. As so modified, judgment affirmed and a new trial granted, with costs to abide the event. We agree with defendant that Special Term erred in charging the jury that it could return a verdict in favor of both parties upon the ground of constructive abandonment, and that it further erred in denying defendant’s motion to set aside such verdict when returned by the jury (see Belandres v Belandres, 58 AD2d 63). We believe that under the circumstances of this case, neither party should "benefit” from these errors. Accordingly, the appropriate decretal paragraphs awarding a divorce to both parties should be deleted even though plaintiff failed to properly perfect his cross appeal (cf. Belandres v Belandres, supra). In light of this determination the decretal paragraph authorizing the defendant to resume her maiden name must also be deleted. Hopkins, J. P., Lazer, Cohalan and Martuscello, JJ., concur.

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—In a matrimonial action, the parties cross-appeal from a judgment of the Supreme Court, Queens County, entered December 6, 1978 which, after a jury trial, inter alia, granted a divorce to both plaintiff and defendant, each upon the ground of constructive abandonment, and awarded counsel fees to the defendant’s attorney. Judgment modified, on the law and as a matter of discretion, by deleting therefrom the first, second and fourth decretal paragraphs thereof. As so modified, judgment affirmed and a new trial granted, with costs to abide the event. We agree with defendant that Special Term erred in charging the jury that it could return a verdict in favor of both parties upon the ground of constructive abandonment, and that it further erred in denying defendant’s motion to set aside such verdict when returned by the jury (see Belandres v Belandres, 58 AD2d 63). We believe that under the circumstances of this case, neither party should "benefit” from these errors. Accordingly, the appropriate decretal paragraphs awarding a divorce to both parties should be deleted even though plaintiff failed to properly perfect his cross appeal (cf. Belandres v Belandres, supra). In light of this determination the decretal paragraph authorizing the defendant to resume her maiden name must also be deleted. Hopkins, J. P., Lazer, Cohalan and Martuscello, JJ., concur.

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Bluebook (online)

71 A.D.2d 951, 420 N.Y.S.2d 15, 1979 N.Y. App. Div. LEXIS 13209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldman-v-waldman-nyappdiv-1979.

Opinion

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