Opinion
October 17, 1955.
Present — Nolan, P.J., Wenzel, Schmidt, Beldock and Ughetta, JJ. Settle order on notice.
In an action for separation on the grounds of cruelty, nonsupport, and abandonment, the appeal is from a judgment granting respondent a separation on the grounds of cruelty and nonsupport, awarding her permanent alimony, and directing appellant to pay arrears of alimony and counsel fees due under an order granting alimony and counsel fees pendente lite. Judgment modified on the law and the facts by striking from the first decretal paragraph the words "cruel and inhuman treatment during part of the marital relationship" and by substituting therefor the words "abandonment of the plaintiff by the defendant." As so modified, judgment unanimously affirmed, with costs to respondent. In our opinion the evidence of cruel and inhuman treatment, in the absence of any physical violence or threat thereof, was insufficient to satisfy the requirement that appellant's behavior might reasonably be said so to affect respondent physically or mentally as seriously to impair her health. ( Pearson v. Pearson, 230 N.Y. 141; Smith v. Smith, 273 N.Y. 380.) On the other hand, we believe the undisputed evidence is ample to establish that appellant abandoned respondent on or about October 4, 1949, with an intention of not returning. Findings of fact inconsistent herewith are reversed, and new findings will be made as indicated herein.