SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 17, 1968
PHYLLIS GOLDMAN, APPELLANT,
ARNOLD H. GOLDMAN, RESPONDENT
Brennan, Acting P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.
The defendant husband admitted at the trial that he had failed to support the plaintiff wife and their two children for 12 weeks. Consequently, plaintiff should have been granted a separation on the ground of nonsupport despite the parties' prior consensual separation (cf. Matter of Steinberg v. Steinberg, 18 N.Y.2d 492, 498). Under the circumstances disclosed, the unallocated award of $50 a week for the support of plaintiff and the two children is not in our opinion inadequate.
Judgment of the Supreme Court, Nassau County, dated June 23, 1966, modified, on the law and the facts, by striking therefrom the decretal paragraph which dismissed plaintiff's complaint and by substituting therefor a provision dismissing the first cause of action and granting plaintiff a separation under the second cause of action. As so modified, judgment affirmed insofar as appealed from, without costs.
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