¶1 (dissenting). After the determination in the prior actions, that neither party had made out a cause of action for separation against the other, either party had the right to offer in good faith to resume cohabitation with the other (Bohmert v. Bohmert, 241 N. Y. 446, 453; Silberstein v. Silberstein, 218 N. Y. 525, 527, 529). That the litigation was bitter and that a number of years had elapsed during which the litigating parties had lived apart are not sufficient to defeat the plaintiff’s right since the plaintiff, as soon as it was finally determined that she had no legal cause to live apart from her husband, offered to resume cohabitation with him (Mirizio v. Mirizio, 248 N. Y. 175, 181). It is not required that plaintiff put out of her memory all the unfortunate differences that had occurred during her marital fife, but simply that, she intend to return to her husband unconditionally if he accept her offer: In Williams v. Williams (130 N. Y. 193, 198) it was said: “ But upon the plaintiff’s offer to return unconditionally, the defendant was without legal excuse in refusing to receive her.”
¶2 In the case at bar, the' wife’s testimony that she made the offer to return in good faith stands uncontradicted because the defendant did not take advantage of the opportunity to present evidence to the contrary. In addition, the trial judge was justified in concluding that the defendant would have rejected any offer to return, whether made in good faith or not. Under such circumstances the following language used by the court in O’Leary v. O’Leary (256 App. Div. 130, 133) is applicable here: “ Although defendant alleges in his answer that plaintiff’s offer to. live with him as his wife was not made in good faith, *344 his testimony — that he would not live with plaintiff under any circumstances — and plaintiff’s testimony that she was willing to live with him, leave no basis for a finding that her offer was not made in good faith.”
¶3 The judgment appealed from should be affirmed with costs.
¶4 Lehman, Ch. J., Loughran and Conway, JJ., concur with Rippey, J.; Finch, J., dissents in opinion in which Lewis and Desmond, JJ., concur.
¶5 Judgment accordingly.