The plaintiff has had at the Special Term a judgment decreeing a separation on the grounds of cruelty and of abandonment. The acts of cruelty charged are most inconsequential. It is claimed that the defendant at times would not speak to the plaintiff and that he insisted on smoking in the same room in which she was sitting despite the fact that he knew she had asthma. These claims, considered in the light of the admitted facts, seem wholly negligible. These parties were married in 1916. They lived together in a household with the plaintiff’s brother. This brother and the defendant owned a piece of real estate together and had a dispute with reference to it. The defendant wished to sue his brother-in-law for partition and did so despite the plaintiff’s refusal to join in the action. This refusal is inferable from the fact that she was admittedly made a party defendant. The plaintiff appears to have sided with her brother in this controversy and the marital trouble of these parties is directly attributable to this dispute about real estate.
As to the abandonment, the plaintiff admits that when the defendant left the house he placed on her mirror a written memorandum of his address. He had previously requested her to leave their then abode and establish a household apart from her brother. His testimony that when he left he gave her his address and asked her to come and live with him is persuasive of any lack of intent to abandon his wife, and it seems clear that on her part she preferred to reside with her brother. These conclusions are fortified by the testimony of the witness Sacher as to his efforts to persuade Mrs. Reider to live with her husband. The testimony shows clearly the defendant’s constant endeavor to resume marital relations with the plaintiff.
*336I do not think this plaintiff has sustained the burden of proof of showing either cruelty or abandonment, and, therefore, the judgment appealed from should be reversed and a new trial ordered.
Merrell and O’Malley, JJ., concur; Dowling, P. J., and Martin, J., dissent.