
    Milton S. Travin, Respondent, v. Marion R. Travin, Appellant.
   Plaintiff brought this action for a separation on the ground of abandonment, in that defendant refused to move into a home established by him. Defendant interposed counterclaims seeking (1) a separation on the grounds of (a) abandonment, (b) cruel and inhuman treatment, and (e) failure to support, and (2) an accounting with respect to certain properties jointly owned by the parties. During the trial the complaint was amended by adding as a ground defendant’s willful refusal to cohabit with plaintiff. Judgment was rendered in favor of plaintiff on both grounds. The court found that defendant, without legal cause or justification, had abandoned plaintiff by refusing to move to a home established by plaintiff in good faith, and had denied plaintiff his conjugal rights. The first, second and third counterclaims were dismissed on the merits, and the fourth counterclaim was dismissed without prejudice. The judgment also awarded custody of the infant daughter of the parties to defendant, and directed plaintiff to pay $40 a week for the child’s support, with visitation rights to plaintiff. Defendant appeals from the judgment entered thereon. Judgment modified on the law and the facts by deleting from the first ordering paragraph the words “ and on the further ground that defendant, without legal cause or justification, denied the plaintiff his conjugal rights”. As so modified, judgment unanimously affirmed, without costs. Finding of fact Fourth ” is reversed and a new finding is made as follows: “ Fourth: That since the 13th day of July, 1956, and until the commencement of the action, the defendant, without just cause, did willfully abandon and desert the plaintiff by refusing to move to a home established by plaintiff in good faith.” In our opinion, the proof did not warrant a finding with respect to the denial by defendant of plaintiff’s conjugal rights. Present — Nolan, P. J., Wenzel, Beldoek, Ughetta and Hallinan, JJ.  