Robinson v. Robinson

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

Decided October 6, 1911

Appellate Division of the Supreme Court of the State of New York · decided 1911-10-06

Appeal by the defendant, George L. Bobinson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 5 th day of December, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to: bring up for review a judgment for costs in favor of the plaintiff entered in said clerk’s office on the same ■ day.

Relies on Erkenbrach v. . Erkenbrach

Decided 1911-10-06

Burr, J.

¶1(concurring):

¶2I concur. I think, in the language of Judge Andrews in Davis v. Davis (supra), the language of section 1166 of the Code of Civil Procedure may be construed to apply to “ cases where the wife, although entitled to a decree of separation, should choose to waive her right thereto, insisting only on a provision for the maintenance of herself and her children.” (See Erkenbrach v. Erkenbrach, 96 N. Y. 456, 462.) In this case the wife has not shown herself entitled to a decree for separation.

¶3Judgment reversed, without costs, and new trial granted.