Opinion
January, 1931.
Order denying defendant's motion to dismiss the complaint affirmed, with ten dollars costs and disbursements, with leave to defendant to answer within five days from service of a copy of the order herein. Whether or not the defendant's conduct as it may be evidenced under the allegations contained in paragraph 6 of the complaint would sustain a decree of separation may only be determined upon the trial. ( Pearson v. Pearson, 230 N.Y. 141; Tower v. Tower, 134 App. Div. 670.) As a matter of mere pleading paragraph 6 is sufficient in law. Paragraph 5, however, is insufficient. Lazansky, P.J., Young, Hagarty, Carswell and Tompkins, JJ., concur.