Hammer v. Hammer

• Decision Date: 21 February 1974
• Citation: 34 N.Y.2d 545,309 N.E.2d 874,354 N.Y.S.2d 105
• Parties: , 309 N.E.2d 874 Arthur HAMMER, Appellant, v. Edna HAMMER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 105

354 N.Y.S.2d 105

34 N.Y.2d 545, 309 N.E.2d 874

Arthur HAMMER, Appellant, v.Edna HAMMER, Respondent.

Court of Appeals of New York.

Feb. 21, 1974.

Hugh J. Helfenstein and Alvin I. Goidel, New York City, for appellant.

Bruno Schachner and Norman M. Sheresky, New York City, for respondent.

MEMORANDUM.

The order of the Appellate Division, 41 A.D.2d 831, 342 N.Y.S.2d 9, should be affirmed, without costs.This court accepts the finding below, that plaintiff husband, through long acquiescence, consented to a sex-limited relationship with his wife.It is notable that the husband neither demanded a renewal of sexual relations nor threatened to terminate the marital relationship because of the abstention.Indeed, although he alleged 10 years of abstention, he conceded that he had no intention of ending the marriage until just prior to quitting the marital abode in May, 1970.

In light of these facts of consent and condonation, and also in view of the age of the parties and the duration of the marriage, the Appellate Division acted within its discretion in determining that the wife was not chargeable with 'constructive abandonment' under the Domestic Relations Law(§ 170, subd. (2)).(See1 Foster & Freed, Law and The Family, New York, § 6:19;cf. e.g., Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891, decided simultaneously herewith.)

BREITEL, C.J., and JASEN, GABRIELLI, JONES, WACHTLER,...