Opinion
Argued May 30, 1980
Decided June 24, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, WILLIAM P. McCOOE, J.
Abraham Hecht for appellant.
Roy J. Girasa for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
We cannot conclude, as a matter of law, that the evidence in this record was insufficient to support the determination of the Appellate Division that respondent wife was entitled to a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law, § 170, subd [1]). The husband's assertion that the dismissal of the wife's prior complaint for a divorce on the same ground was preclusive or operated to bar the consideration in this proceeding of evidence submitted on the prior trial must be rejected. The prior determination would have barred a claim based solely on the same evidence; it did not, however, render that evidence inadmissible in the present proceeding or preclude relief in this proceeding based on that evidence supplemented by the additional proof of postfirst trial conduct of the husband.
Respondent wife's contention that the order of the Appellate Division should be modified to increase the allowance of alimony and counsel fees cannot be considered inasmuch as she took no appeal from the order of the Appellate Division.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.