
    First Department,
    June, 1926.
    Ella Spingarn, Appellant, v. Joseph Spingarn, Respondent.
    
      Husband and wife — separation — evidence does not show facts rendering it unsafe and improper for plaintiff to live with defendant.
    
    Appeal from so much of a judgment of the Supreme Court, entered in the New York county clerk’s office on June 16, 1925, as dismisses the plaintiff’s complaint on the merits.
   Per Curiam.

The court at Special Term properly dismissed the plaintiff’s complaint upon the merits. The action was to obtain a decree of separation of the parties by reason of conduct on the part of the defendant rendering it unsafe and improper for the plaintiff to longer cohabit with the defendant. We are unable to agree with the findings of the learned court at Special Term that by reason of the proven facts it became unsafe and improper for the plaintiff to cohabit with the defendant. While the testimony offered by the plaintiff, if true, might be ground for annulling the marriage of the parties, it is insufficient to support a decree of separation, even though plaintiff had not participated in the acts of which she complains. The judgment should, therefore, be affirmed; but all findings of fact contained in the decision of the Special Term that the defendant was guilty of such acts and conduct toward the plaintiff as rendered it unsafe and improper for her to cohabit with the defendant should be disapproved. Present — Clarke, P. J.,Merrell, Finch, Martin and Wagner, JJ. Judgment affirmed. Findings of fact in the decision to be reversed as indicated in the opinion. Settle order on notice. 
      
       See Civ. Prac. Act, § 1161, subd. 2.—• [Rep.
     