Rusoff v. Rusoff

In an action for a judicial separation, the plaintiff wife appeals from a judgment of the Supreme Court, Kings County, entered May 1, 1963 after a non jury trial, upon the court’s decision, which dismissed the complaint and, among other things, directed the payment by defendant of a stated sum for “ accumulated alimony.” Judgment reversed on the law and the facts, without costs, and a new trial granted. The court erred in restricting the proof at the trial to the specific times and occurrences alleged in the complaint, and in refusing to permit evidence designed to show a general course of conduct by defendant (Passera v. Passera, 276 App. Div, 852; Rasmussen v. Rasmussen, 278 App. *795Div. 670). Since there is to be a new trial, we express no opinion as to whether any money judgment should be entered in plaintiff’s favor for alleged arrears in temporary alimony, a matter which had been referred to the trial court for determination. Kleinfeld, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.