The opinion
Markewich, J.
(dissenting). I dissent and would affirm the judgment of divorce. Even, as the majority has done, applying the standards which obtained under the ‘ ‘ old ’ ’ law for making out a case of cruel and inhuman treatment, the trial court’s findings, particularly as expressed in the separate written decision filed on February 19, 1969, are more than sufficient for this purpose. “ The harassment to which he [plaintiff] was sub *328 jected by the defendant ’ ’ consisted, the trial record discloses, of false accusations of infidelity recklessly made (see Zielinski v. Zielinski, 6 A D 2d 756, affd. 6 N Y 2d 735). But we need hot, indeed we should not, any longer look to the old cases by which to measure whether the old standards for cruel and inhuman treatment, as a basis for separation, apply to the new ground for divorce. This marriage, in which plaintiff husband was ordered, upon his wife’s whim, to leave his home for extended periods of separation, the last one underscored by her removal of his clothes during his temporary absence from home, and punctuated by continuous unfounded accusations of infidelity, was a sick marriage, no longer viable. ‘ ‘ Implicit in the statutory scheme is the recognition that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bonds.” (Gleason v. Gleason, 26 N Y 2d 28, 39). Similar expressions as to the effect of the reformed divorce law run through Gleason like a thread. Society is not done a service when a marriage which is one uninterrupted argument over money is forced to continue by being shrugged off as mere “incompatibility.” If more were needed, let us again quote from the report of the seminar on ‘6 Matrimonial and Family Law” at the 1967 Orotonville Conference of New York State Trial Judges, cited at page 413 of the dissent in Gleason at the Appellate Division (32 A D 2d 402): “With respect to grounds and defenses, the panel first discussed the importance of the new ground of cruel and inhuman treatment and considered the significance of the statutory references to conduct of the defendant which ‘ so endangers the physical or mental well- being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.’ [Emphasis added]. Over some dissent, there was a consensus that cruel and inhuman treatment approaches and perhaps indeed encompasses incompatibility as a basis for divorce. In addition, it was generally agreed that in deciding whether an allegation of cruel and inhuman treatment has been made out in a given case, an essentially subjective standard would be used and that the fact that the conciliation procedure had failed to effect a reconciliation of the parties would be a relevant consideration.” (Thirteenth Annual Report N. Y. Judicial Conference, N. Y. Legis. Doc., 1968, No. 90, p. 115.) Let us understand once and for all that the old order has changed, giving place to the new.
MoG-rvEKtr, J. P., and Tilzer, J., concur with McNally, J.; Mabkewioh, J., dissents in opinion.
*329 Judgment reversed on the law and the facts, without costs and without disbursements, and judgment is directed in favor of defendant dismissing the complaint on the merits. Finding of fact No. 5 and conclusion of law No. 1 are reversed and new findings and conclusions of law are made as indicated. Conclusion of law No. 3 is modified to provide that the Family Court of the State of New York shall have concurrent jurisdiction with regard to the amount plaintiff will pay to the defendant as and for the support and maintenance of herself and of the infant daughter.
Settle order on notice making new findings of fact, conclusions of law and providing for an amended judgment.