Dionysius v. Dionysius , 200 A.D. 842 ( 1921 )

At the close of the case the learned trial justice reserved decision. Plaintiff was the only witness in her own behalf, which is not unusual in actions for separation. The action was based upon allegations of abandonment (former Code Civ. Proc. § 1762, subd. 3), and plaintiff's evidence was that defendant abandoned her one year prior to the day of the trial, and had contributed nothing to her support during that time. She testified that he left her without cause. Defendant offered no evidence. Plaintiff’s testimony was not contradicted in any way. The learned trial justice appears to have been misled by the suggestions of defendant’s trial counsel that the action was based upon charges of cruel and inhuman treatment, because in his memorandum opinion he refers to the decisions in Otton v. Otton (196 App. Div. 403) and Donohue v. Donohue (180 id. 561). Both of these cases were based upon allegations of cruel and inhuman treatment, the court holding that the evidence did not justify 'the complaint. But the present case is based upon a different cause of action, i. e., abandonment. The appellant asks this court not only to reverse the judgment, but to make findings of fact and grant a judgment of separation. In an action of this kind we think it is best to send the case back for a new trial. Judgment reversed and a new trial granted, with costs to the appellant. Blaekmar, P. J., Rich, Kelly, Jaycox and Manning, JJ., concur.