(dissenting):
I think plaintiff should have been a granted a decree of separation, with an allowance for alimony and counsel fee. The parties were civilly married in September, 1921. Prior thereto they had mutually agreed upon the performance, the following Christmas, of a religious marriage ceremony in the Catholic church, of which both were members, and it was agreed that they would not live or cohabit together as husband and wife until the performance of such ceremonial marriage. The plaintiff sought to carry out such agreement and requested the defendant to consent to the performance of the religious ceremony. This the defendant refused to do, and told the plaintiff that he did not care for her any more and did not want to live with her. Defendant brought action to annul the civil marriage, but was denied the relief sought and his complaint was dismissed. Defendant has never asked plaintiff to live or cohabit with him as his wife, nor has he provided a home for *528her. The defendant should not be permitted to escape the responsibilities resulting from the civil marriage by his refusal to keep his promise to have a religious ceremony performed. His default should not afford him an excuse for avoiding his legal duty to support his wife. He has never contributed to her support since their marriage. I think he has abandoned her within the contemplation of subdivision 3 of section 1161 of the Civil Practice Act.
In any view of the case, plaintiff was entitled to a decree of separation for non-support under subdivision 4 of section 1161 of said Act, which provides that an action for separation is maintainable wheré the wife is plaintiff, for “ the neglect or refusal of the defendant to provide for her.” For the failure of the defendant to provide for his wife the trial court should have decreed a separation of the parties, with suitable provision for the plaintiff’s support. It was not necessary to support such decree that there was á technical “ abandonment ” of plaintiff by defendant.
The judgment and order appealed from should be reversed, with costs to the appellant, and a separation of the parties decreed, with provision for the support and maintenance of the plaintiff, with costs against the defendant.
Judgment and order affirmed.