Sommer v. Sommer

Order appealed from unanimously reversed, without costs. The motion of the plaintiff is in all respects denied. The cross motion of the defendant to dismiss the complaint is granted. It is alleged therein that the parties are occupying the same apartment. We do not hold that a complaint in a separation action is necessarily legally insufficient where it appears upon the face thereof that the parties are living in a common place of abode. Upon the facts set forth in this pleading, there is no showing to justify departure from the general rule that where a husband and wife are living together neither is entitled to sue for a separation (cf. Berman v. Berman, 277 App. Div. 560) and, hence, we find the complaint legally insufficient. Settle order. Present — Peck, P. J., Callahan, Breitel, Bastow and Botein, JJ.