Butts v. Butts , 50 A.D.2d 584 ( 1975 )

— In an action for divorce, plaintiff appeals from a judgment of the Supreme Court, Queens County, dated September 4, 1974, in favor of the defendant wife, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, during a nonjury trial. Judgment affirmed, with costs. Under the facts and circumstances of this case, it cannot be said that defendant abandoned plaintiff. The parties concededly came to an agreement regarding support. In our view, this agreement, and plaintiff’s adherence to its terms, as well as his failure to attempt any reconciliation after he left home, all manifest his willing departure from the marital abode. There is no abandonment by the wife in such circumstances. As was stated in Schine v Schine (31 NY2d 113, 119), "The conduct of a spouse to constitute abandonment must be unjustified and without the consent of the other spouse”. Gulotta, P. J., Rabin, Hopkins, Latham and Margett, JJ., concur.