Legal Opinion

Wirth v. Wirth

Appellate Division of the Supreme Court of the State of New York

Decided November 8, 1918PublishedCited by 5 opinions

Appeal by the defendant, John Wirth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 3d day of April, 1918, upon the decision of the court after a trial at the Bronx Special Term. The judgment awarded plaintiff a separation and alimony and gave her the custody of the child of the parties.

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Appeal by the defendant, John Wirth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 3d day of April, 1918, upon the decision of the court after a trial at the Bronx Special Term. The judgment awarded plaintiff a separation and alimony and gave her the custody of the child of the parties. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered. ■

1Opinion of the Court

Laughlin, J.:

This is an action for separation on the sole ground of cruel and inhuman treatment. The decision and judgment proceed upon, that and other grounds not alleged, viz., failure properly to provide for the plaintiff and conduct on the part of defendant rendering it unsafe for plaintiff to cohabit with defendant. The complaint was not amended and the evidence relating to the grounds for separation, other than that pleaded, was received over defendant’s objection duly interposed that the evidence was not within the issues. The judgment cannot be supported by the evidence with respect…

2Cited by5 opinions

  1. In re the Estate of TierneyNew York Surrogate's Court · 1933
  2. Harnish v. HarnishAppellate Division of the Supreme Court of the State of New York · 1946
  3. In re the Will of SmithNew York Surrogate's Court · 1947
  4. City of New York v. McCarthyNew York Court of Special Session · 1931
  5. Farrington v. FarringtonAppellate Division of the Supreme Court of the State of New York · 1947

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