Judgment affirmed, without costs. Memorandum: In this action for divorce brought by plaintiff on the grounds of cruel and inhuman treatment, defendant sought to interpose the defense of her mental illness, she having been diagnosed as paranoid schizophrenic. She argues that cruel and inhuman treatment under subdivision (1) of section 170 of the Domestic Relations Law must be intentional and that her mental illness rendered her incapable of forming the required intent. The court found that while mental illness by itself would not constitute cruel and inhuman treatment an attempt to explain or excuse conduct otherwise evincing actionable cruelty because of alleged mental illness is unavailing in an action for divorce. We. agree. In affirming the determination of the trial court, we overrule our earlier decision in Tobin v Tobin (25 AD2d 948) insofar as it might have application to the instant case. In Tobin, we denied defendant a separation based upon cruel and inhuman treatment as alleged in her counterclaim, finding that while plaintiff’s “actions were unusual and under other circumstances might have been found to be cruel and inhuman * * * they were so clearly the acts of an irrational person that it cannot be said that they were deliberately and thoughtfully committed” (Tobin v Tobin, supra). There is no statutory defense to an action for divorce based upon defendant’s cruel and inhuman treatment {Biamonte v Biamonte, 57 AD2d 1052). Implicit in a finding that mental illness negates the necessary intent to act in a cruel and inhuman manner adds a dimension to the statute which simply does not exist. Subdivision (1) of section 170 of the Domestic Relations Law, in straightforward language, requires that for conduct to be actionable, it must endanger the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the *924defendant. Thus the statutory test is the effect of the conduct upon plaintiff, the only caveat being that the misconduct complained of must be more than incompatibility and that serious misconduct be distinguished from trivial (Hessen v Hessen, 33 NY2d 406,410). The burden of proving this remains with the plaintiff. Were we to adopt defendant’s argument, an additional burden would be placed upon plaintiffs in all cases, that of proving intent, there being no affirmative defenses to cruel and inhuman treatment. There is nothing in the statute to indicate that the Legislature intended such a requirement and the courts should not interpose a test clearly lacking in the statute. All concur, except Dillon, P. J., and Schnepp, J., who dissent and vote to reverse and dismiss the complaint, in the following memorandum.