
    =Mabel Reynolds, Respondent, v. Schuyler Reynolds, Appellant.
    In an action for a separation from bed and board, on the ground of cruel and inhuman treatment, evidence of cohabitation after the last act of cruelty proved, is not, as in an action for divorce on the ground of adultery, proof that such treatment had been condoned or forgiven.
   Parker, J.

This is an action for a separation from bed and board forever, on the ground of cruel and inhuman treatment. The defendant, in his answer, denied the cruel and inhuman treatment alleged in the complaint, and set up that after the alleged committing of the several acts complained of, the plaintiff had, from October, 1857, to April, 1858, continued voluntarily to cohabit with him.

The referee found that the defendant had been guilty of cruel and inhuman treatment of the plaintiff, and of such conduct toward her as to render it unsafe and improper for her to cohabit with him, and that said treatment and conduct had not been condoned or forgiven by the plaintiff, and that the plaintiff is entitled to judgment decreeing that the plaintiff and defendant be separated from bed and board forever.

These findings are fully warranted by the evidence, of specific acts of cruelty and inhuman treatment, and of the circumstances under which the plaintiff continued to cohabit with the defendant after the last. act of cruelty proved. Such continuance is not, in this case, as it would have been in an action for divorce on the ground of adultery, conducive of the fact of condonation. In that case the statute makes it so, but not in this. (2 R. S. 145, § 42 [1st ed.]; Johnson v. Johnson, 4 Paige, 460; S. C., 14 Wend. 637; Whispell v. Whispell, 4 Barb. 217; 2 R. S. 147.) As the case stands here, therefore, the conclusion of the referee that the plaintiff is entitled to judgment is unimpeachable.

The exceptions taken upon the trial appear, from the report of the case before the General Term of the Supreme Court, not to have "been thus presented. They were all, except one, which was grounded on a refusal to nonsuit the plaintiff, to the admission of evidence. The evidence objected to was, in each case, so clearly competent that the defendant’s counsel did well to abandon them, as they do their whole case here by failing to appear either to argue or submit their case.

The judgment appealed from is right and should be affirmed with costs, and an award of ten per cent upon the amount of the judgment as damages, for the delay produced by the appeal.

All the judges concurring,

Judgment accordingly.  