¶1I concur in the result arrived at in Justice McGivern’s opinion: dismissal of complaint and counterclaim for insufficiency of proof, and provision for support of plaintiff wife and the children of the marriage. However, I find no justification in the record for the statement that the Trial Justice arrived at a conclusion of divorce for the husband on the ground of abandonment by “ an indiscriminate application of the ‘ dead marriage ’ theory ’ ’. This is accompanied by a discussion distinguishing this ease from Gleason v. Gleason (26 N Y 2d 28). As the majority opinion recognizes, this case is founded, both in complaint and counterclaims, on allegations by each party of the fault of the other; the judgment is on a finding of fault; the parties did not present it as anything other than a " fault ” case—indeed, from what appears in the record, they could not; in short, they pleaded and tried a clear-cut ‘ ‘ fault ’ ’ case, albeit both unsuccessfully ; and the excerpted statement of the Trial Justice runs counter to any idea that the judgment had any basis in “ dead marriage. ” That theory is dragged in by the heels, and nothing in the record supports it, or a discussion of it. Parenthetically, I find the same difficulty with Justice Kupeebmah’s attempt to *305justify the judgment of divorce, basing it on the idea of ‘ ‘ dead marriage.”
¶2In short, what I see here is simply that each party has failed to establish the fault of the other. There is no point in attempting to distinguish this case from Gleason, to which it bears no resemblance, or, on the other hand, to award a divorce as a sort of equitable compromise in a case that does not call for it. Our duty is to “ grant the judgment which the court below ought to have granted.” (Society of N. Y. Hosp. v. Burstein, 22 A D 2d 768; CPLR 5522). To this end, I concur in the result.