Santiago v. Santiago , 19 A.D.2d 551 ( 1963 )

In an action by a husband for a separation, in which the wife counter-claimed for the same relief, the plaintiff husband appeals from a judgment of the Supreme Court, Nassau County, entered July 6, 1962 upon the opinion and decision of the court after a non jury trial, which (a) dismissed the complaint; and (b) granted a separation to the defendant wife on her counterclaim. Judgment affirmed, with costs. The proof established an abandonment by the husband of the wife, i.e., that he voluntarily and without justification left the marital domicile against the wife’s wishes, and that he did so under circumstances which evinced an intent on his part not to return. It does not matter what name or label the pleader has given to the grounds or to the several causes of action set forth in the pleading so long as the proof establishes (as it did here) one of the grounds enumerated in the statute (Civ. Prae. Act, § 1161; Biemer v. Diemer, 8 N Y 2d 206, 211-212). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.