
    (April 12, 1955.)
    Ruth Samios, Respondent, v. John Samios, Appellant.
   Per Curiam.

The appeal is from a judgment granting plaintiff wife a separation upon the ground “ of the neglect and refusal of the said defendant to provide for the plaintiff ” and dismissing on the merits defendant husband’s counterclaims for separation for alleged cruelty or for an annulment for alleged fraud.

The evidence in this case does not sustain the conclusion that the defendant husband abandoned plaintiff wife. On the contrary, the testimony of the husband and that of the wife and her witnesses as well definitely establishes that the wife in September, 1953, abandoned the husband because he had normal intercourse with her, and because, as she believed, he had caused her to become pregnant.

The record clearly indicates that the husband had made adequate provisions for the support of his wife within his means, and that there is no reasonable basis for a finding that he neglected or refused to provide for her before her willful abandonment of him as aforesaid.

Although the husband in his counterclaim seeks a legal separation for the alleged cruelty of the wife, the proof establishes that he is entitled to such a decree because of her willful abandonment of him in September, 1953, without just cause. The allegations of the counterclaim will be deemed to conform to the proof on the litigated issue in respect of the abandonment of the husband by the wife.

The judgment should be accordingly reversed and the complaint of plaintiff dismissed upon the merits and a judgment of separation in favor of the husband should be granted upon the ground of abandonment. Settle findings and conclusions accordingly.

Peck, P. J., Cohn, Breitel, Bastow and Botein, JJ., concur.

Judgment unanimously reversed, the complaint dismissed upon the merits and judgment in favor of the husband is granted upon the ground of abandonment. Settle findings and conclusions in accordance with the opinion herein. Settle order on notice.  