Russ v. Russ

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Russ v. Russ, 161 N.Y.S.2d 696, 3 A.D.2d 888 (N.Y. App. Div. 1957)
• Decision Date: 17 April 1957
• Parties: Hugh McM. RUSS, Respondent, v. Lavinia F. RUSS, Appellant.

Page 696

161 N.Y.S.2d 696

3 A.D.2d 888

Hugh McM. RUSS, Respondent, v. Lavinia F. RUSS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 17, 1957.

Rothenberg, Atkins & Koss, New York City (Charles Rothenberg, New York City, of counsel), for appellant.

John E. Dickinson, Buffalo (Charles S. Wilcox, Rochester, of counsel), for respondent.

Before McCURN, P. J., and KIMBALL, WILLIAMS and BASTOW, JJ.

PER CURIAM.

This is a consolidated action for a separation sought by the respondent husband on the ground of abandonment, and by the appellant wife on the ground of cruel and inhuman treatment. We agree with the learned official referee that no such conduct on the part of the husband was shown as would entitle appellant to a separation. 'That the parties are not mated is no ground for separation. Occasional strife, lack of domestic harmony or even mutual aversion between husband and wife are not enough. There must be proof that the acts complained of fall within the statute.' Avdoyan v. Avdoyan, 265 App.Div. 763, 766, 40 N.Y.S.2d 665; Straub v. Straub, 208 App.Div. 663, 204 N.Y.S. 61. 'The fact that incompatability exists, and that a husband and wife find it impossible to live in harmony, while no doubt furnishing justifiable reasons as between themselves for separating, does not meet the requirements for a judicial separation fixed by the statute and the policy of the state. A spouse may be unfit to live with as such, because of habits, character, or temperament; but unless [one of the grounds enumerated in Civ.Prac.Act, Sec. 1161 is established] * * * the court has no power to decree separation'. Averett v. Averett, 189 App.Div. 250, 252, 178 N.Y.S. 405, 406. We are satisfied that the cruel and inhuman treatment of appellant by respondent was not established. It does not follow, however, that the latter is entitled to a separation on the ground of unjustifiable abandonment. 'Cruel and inhuman treatment is not the only 'justification' which may be pleaded in defense to an action for separation predicated upon allegations of abandonment'. Murphy v. Murphy, 296 N.Y. 168, 171, 71 N.E.2d 452, 454. We believe that the relations which existed between the parties for a substantial period of time, and respondent's attitude toward his wife, were such that she was justified in leaving him and establishing her own home. In other words, we find that the defendant sustained her defense of justification within the provisions of Section 1163 of the Civil Practice Act. However, in our opinion the quantum of proof was such that it did not rise to the necessary level to justify the granting of a judgment of...