Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D. Bigelow, J.A.D. (dissenting).
This is an appeal from a judgment of the Superior Court, Chancery Division.
Plaintiff instituted a suit for separate maintenance, alleging that she was compelled to separate herself from the defendant because of his extreme cruelty and alleging that he refused and neglected to support her. Defendant denied the allegations of the complaint and counterclaimed for divorce on the ground of desertion.
At the hearing, plaintiff testified that during her married life her husband habitually neglected her and was absent from the home practically every evening. His absences created suspicions in her mind. These suspicions were strengthened when she heard rumors concerning her husband and one
Sophie Terpanick. She said she confronted her husband with what she had heard and asked him to give up this other woman. She then testified that he admitted his relationship with the woman but he said he could not give her up because "it had gone all the way."
Plaintiff also testified that she became disturbed because her husband told her he repeatedly watched a woman in the downstairs apartment taking a bath. He did this by peeking through a hole in the floor.
She said that she left her husband on June 29, 1944, because she could not bear his conduct any longer. She said there had been an argument in January or February of that year over a bank book. The bank account was in her name and contained some $4,000. She took the book from its customary place. He told her that unless she returned it, he would give her no more money, and, she testified, he has not given her any. She claims she has used nearly all of the money in that account for medical bills and for living expenses and is at present unable to work because of her health.
There was evidence in the case that although she weighed approximately 160 pounds prior to her separation, she weighs only about 100 pounds now. The court below concluded that her illness was due to her husband's conduct.
Defendant denied all the allegations made by the plaintiff. He claims that plaintiff ceased talking to him after some insignificant quarrel concerning an automobile. He alleges that when he came home on June 29, 1944, she was gone. He admitted, however, that although she had never in the past gone away without informing him, he made no effort to locate her until four days later. He denied he even knew Sophie Terpanick until after his wife left him. He further claims that he attempted to effect a reconciliation, but his wife refused to return. Plaintiff admits a conversation concerning a reconciliation, but she claims the defendant wanted her to live in the room of their son, separate and apart from the defendant. Furthermore, she claims, he still persisted in his refusal to give up the other woman.
The court below dismissed the defendant's counterclaim and awarded separate maintenance to plaintiff in the amount
of $50 per week and ordered defendant to pay a $350 counsel fee. Defendant ...