Majority
p. 544Anne E. Batchelor, Respondent, v. Clarence D. Batchelor, Appellant. Argued June 3, 1946; decided July 23, 1946. Plaintiff made no offer, bona fide or otherwise, to resume marital cohabitation with defendant before she brought this suit. (Solomon v. Solomon, 290 N. Y. 337 .) By entering into formal separation agreements on two occasions, defendant admitted the right of the plaintiff to live separate and apart from him and thereby conceded her right to support during such separation.
Charles Bothenberg, Daniel J. McMahon and Abraham Wilson for appellant.
Joseph H. Broderick and S. Bertram Friedman for respondent.
Before plaintiff was entitled to a judgment of separation upon the ground that defendant had failed to support her while they were living separate and apart by mutual consent, it was necessary for her to establish that she offered
p. 545
in good faith to return to her husband and resume the marital status. Lack óf that proof required a dismissal of her second cause of action. (Solomon v. Solomon, 290 N. Y. 337 . 340-341; cf. Mirizio v. Mirizio, 242 N. Y. 74 , 82.) Accordingly it was error to direct judgment of separation in favor of plaintiff and against the- defendant. Insofar as the judgment directs that plaintiff is entitled to a separation and alimony it should be reversed and the complaint dismissed, without costs; otherwise the judgment should be affirmed, without costs.
The judgments should be modified in accordance with this opinion, and, as so modified, affirmed, without costs.
Loughrax, Ch. J., Lewis, Conway, Desmond and Thaoher, JJ., concur; Dye and Fuld, JJ., taking no part.
Judgment accordingly.
Cases cited
- Solomon v. Solomon 290 N. Y. 337 p. 544, p. 545
- Mirizio v. Mirizio 242 N. Y. 74 at 82 p. 545