(November 13, 1951.)

#### Mary-Alice Rodgers, Respondent, *v.*William H. Rodgers, Appellant.

*Per Curiam.*

In action by plaintiff wife against defendant husband for separation on the grounds of cruelty, abandonment and nonsupport, defendant husband appeals from a judgment after trial granting plaintiff a separation from defendant and permanent alimony, on the grounds claimed, and dismissing defendant’s counterclaim for annulment because of claimed fraud; defendant also appeals from an order dated November 22, 1949, denying the first of two successive motions for a new trial on newly discovered evidence and from another order of a later date denying a second such motion.

On the appeal from the judgment, we think the findings of the trial court of abandonment and nonsupport are contrary to the evidence. The evidence, in our opinion, established that defendant provided for plaintiff and did not legally abandon her. No issue of adultery was raised by the pleadings or claimed at trial and on the record now before us, indirect suggestions or innuendoes thereon may not be considered as a basis for sustaining the judgment. We also find that the greater part of the evidence to support alleged cruelty, related to trivia as the Trial Justice frequently remarked during the trial. Trivial things do not afford a basis for separation, and on retrial evidence should be restricted to matters that are serious. We hold that the trial court properly dismissed defendant’s counterclaim for annulment based on (1) claimed concealment of diseases, viz., colitis and arthritis; and (2) claimed concealment of age.

Reading, however, the trial testimony in the light of all the facts and circumstances disclosed on the motions for a new trial, including the fact that on the trial testimony of plaintiff, a party to the action, was admittedly deliberately false and involved deception of the court, we think, in the interest of justice, that a new trial should be granted. In granting a new trial we do not indicate that defendant may ultimately succeed on the new and additional grounds now urged for annulment.

*641The judgment appealed from should be modified by reversing that part of the judgment which grants plaintiff a separation, permanent alimony, costs and “ further relief ”, and ordering a new trial with respect thereto, and by affirming that part of the judgment which (1) dismisses defendant’s two counterclaims presented by the pleadings on this trial; and (2) allows plaintiff’s trial counsel $200 as additional counsel fee in the action. The two orders denying defendant’s motions for a new trial should be reversed, without costs, and the motions granted.

Peck, P. J., Glennon, Dore, Cohn and Callahan, JJ., concur.

Judgment modified by reversing that part of the judgment which grants plaintiff a separation, permanent alimony, costs and “ further relief ”, and ordering a new trial with respect thereto, and by affirming that part of the judgment which (1) dismisses defendant’s two counterclaims presented by the pleadings on this trial, and (2) allows plaintiff’s trial counsel $200 as additional counsel fee in the action. Orders denying defendant’s motions for a new trial unanimously reversed, without costs, and the motions granted. Settle orders on notice. [See *post,*pp. 790, 986.]