Cramer v. Cramer , 68 A.D.2d 1013 ( 1979 )

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered December 28, 1977 in Montgomery County, upon a decision of the court at a Trial Term, with an advisory jury. The plaintiff sued the defendant for divorce based upon cruel and inhuman treatment and the defendant sued the plaintiff for divorce upon the same grounds. The advisory jury returned a verdict in favor of both parties and the court granted such mutual relief in the judgment appealed from. The plaintiff has not appealed from so much of the decree as grants a divorce in favor of the defendant. The record contains evidence of frustration and incompatibility; however, there is a failure to establish that either the physical or mental well-being of the plaintiff was so endangered as to render it unsafe or improper for him to continue to cohabit with the defendant (Anderson v Anderson, 58 AD2d 679). Judgment modified, on the law and the facts, by striking the first decretal paragraph thereof and inserting a new provision dismissing the plaintiff’s complaint, and, as so modified, affirmed, without costs. Greenblott, J. P., Staley, Jr., Main, Mikoll and Herlihy, JJ., concur.