Harold G. Lacks v. Irene R. Lacks

Judgment, dismissing the complaint after trial in this separation action, unanimously reversed, on the law and on the facts and new trial ordered, without costs or disbursements to either party. Defendant did not appear at the trial, nor was there any deposition from her presented to the court. Plaintiff's testimony stands uncontradicted, although defendant was represented by counsel, who cross-examined plaintiff at length. If the court below believed the testimony of the plaintiff then the conduct of the defendant, as testified to by the plaintiff, might well be found to constitute cruelty. The court did indicate that it credited substantially plaintiff's testimony concerning his wife's conduct toward him. Were there no other questions in the case we might well have made our own findings on the basis of the evidence adduced. Unfortunately, however, the