Opinion
June 18, 1969
In an action for divorce, plaintiff appeals from a judgment of the Supreme Court, Nassau County, dated March 27, 1969, which dismissed her complaint after a nonjury trial. Judgment reversed, on the law, without costs, and new trial granted. The findings of fact below have not been affirmed. In 1959 plaintiff wife obtained a decree of separation from defendant husband. On September 19, 1968 the wife brought this action for divorce pursuant to subdivision (5) of section 170 Dom. Rel. of the Domestic Relations Law. In his answer, the husband admitted the allegations of the complaint and contested only the claims for alimony and a counsel fee. Nevertheless, the trial court dismissed the complaint, after trial, on the ground that subdivision (5) of section 170 (enacted in 1966) is not retroactive and does not apply where the separation decree was obtained prior to the enactment of this statute. In Schacht v. Schacht ( 32 A.D.2d 201) we have held that this statute is retroactive and does apply where the separation decree was obtained prior to the statute's enactment. Consequently, the dismissal of the complaint in this action, on the ground of nonretroactivity of the statute, was incorrect. The judgment must therefore be reversed and a new trial granted. Christ, Acting P.J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur. [ 59 Misc.2d 344.]