Rosenstein v. Rosenstein , 1 A.D.2d 877 ( 1956 )

At the close of wife’s proof in this action for a separation, the court dismissed the complaint. The action is based on a claim of cruelty and on a course of conduct rendering cohabitation unsafe. We are of the opinion that at the end of her proof, plaintiff had made out a prima facie case for a judicial separation. It may well be that when the litigation is examined on full presentation of the controversy from the husband’s side as well as the wife’s, the charges which the wife makes against the husband will be found unwarranted. But as the ease stood at the close of plaintiff’s presentation, the complaint should have survived defendant’s motion to dismiss. Judgment, so far as appealed from, unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. Concur — Peck, P. J., Breitel, Rabin, Frank and Bergan, JJ.