
    MABEL REYNOLDS, Respondent, v. SCHUYLER REYNOLDS, Appellant.
    
      Condonation—Cruel Treatment— Cohabitation.
    
    In an action for a separation from bed and board on account of cruel and inhuman treatment, the fact of continued cohabitation after the acts complained of, is not conclusive evidence of condonation or forgiveness, as in cases where the cause is adultery.
   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 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, conclusively 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 now, therefore, the conclusion of the referee that the Plaintiff is entitled to judgment is unimpeachable.

The exceptions taken upon the trial, from the report of the case before the General Term of the Supreme Court, appear not to have been there presented. They were all except one, which was grounded upon a refusal to nonsuit the Plaintiff, taken to the admission of evidence. The evidence objected to was, in each case, so clearly competent, that the Defendant’s counsel did well to abatidon 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.  