Opinion
October 22, 1951.
In an action for a separation on the grounds of abandonment and nonsupport, the complaint alleges lack of jurisdiction of the court in which respondent obtained a decree of divorce, and the answer alleges that the parties are not husband and wife perforce the said decree. Judgment was rendered in favor of respondent after trial by the court without a jury; the decision stating, "plaintiff has failed to sustain her cause of action for a separation." Judgment, insofar as appealed from, reversed on the law and the facts, without costs, and the matter remitted to Special Term to make findings or to state the essential facts. Since the judgment was on the merits and not a nonsuit, a decision stating the facts which the trial court deemed essential was required. ( Mario v. De Oteris, 275 App. Div. 790; Goldberg v. Bruns, Kimball Co., 276 App. Div. 862.) Nolan, P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.