Plaintiff sues defendant for separation, claiming various acts of physical mistreatment, failure to support and breach of a premarital promise to embrace her religious faith. The complaint charges that the defendant physically assaulted the plaintiff on numerous occasions in 1959, 1960 and 1961. Defendant vigorously denies these allegations. The court heard this case without a jury.
Both parties testified that they continued to live together in the same apartment at 11 Janice Street in the City of Buffalo, New York, up to and on the first day of trial. Indeed, they continued to share the same bed, although coneededly they have not had physical relations for an extended period of time. Plaintiff explains this by testifying that she is financially unable to leave the apartment in question and defendant states that he is unwilling to leave the apartment which he paid to furnish.
Beaching the merits of plaintiff’s case is complicated by the division of legal authority in this State on the right of a party to seek legal separation where that party admittedly continues to share a common household with the defendant. In the case before us plaintiff has proved grounds which would support a legal separation if it were not for her conduct in remaining in the same apartment with her husband. In Berman v. Berman (277 App. Div. 560 [1950]) the First Department held that the parties are not entitled to a judgment of separation in such circumstances. The court stated at page 560: ‘ ‘ We think it is contrary to the policy of the law and incongruous to separate parties judicially who have not separated themselves.”