
    COURT OF APPEALS.
    Mabel Reynolds, respondent agt. Schuyler Reynolds, appellant.
    In an action for a separation from bed and board forever, on the ground of cruel and inhuman treatment, the continuance of cohabitation by the parties for a limited time, after the last act of cruelty proved, is not, as in the case of an action for divorce, conclusive of the fact of condonation.
    
      January Term, 1867.
    -This is an action for a separation from bed and board forever, on the ground of cruel and inhuman treatment.
   Parker, J.

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 towards her as to render it unsafe and improper for her to cohabit with him; and that said treatment and conduct had not been 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, conclusive of the fact of condonation. In that case the statute makes it so, but not in this. (2 R. S. 45, § 42, 1st ed.; Johnson agt. Johnson, 4 Paige, 460; S. C. 14 Wend. 637; Whispell agt. Whispell, 4 Barb. 217; 2 R. SD. 147.)

As the case stands now, therefore, the conclusion of the referee that the plaintiff is entitled to judment 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 there presented. They were all except one, which was grounded upon a refusal to non-suit 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 then, 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 affirm.  