Judgment, Supreme Court, New York County, entered December 3, 1976, dismissing plaintiff's complaint and granting defendant a judgment of divorce on his counterclaim, unanimously modified, on the law, and the facts, without costs or disbursements, to the extent of vacating the judgment of divorce, dismissing the counterclaim for divorce, dismissing the complaint, and deleting the provision barring plaintiff's use of the surname "Viczian", and, except, as thus modified, affirmed. The actions of neither party constitute sufficient grounds to grant either the divorce sought by the husband for cruel and inhuman treatment or the separation sought by the wife for abandonment. Trial Term properly dismissed the wife's separation action. Although the parties are clearly and irrevocably incompatible "the application of the cruel and inhuman treatment ground to every `dead marriage' would * * * seem unwarranted" (Hessen v Hessen, 33 N.Y.2d 406, 411). The State Legislature has limited the grounds for divorce. The courts should not be used to circumvent the Legislature's will by creating additional grounds. The counterclaim should have been dismissed along with the complaint. The judgment imperfectly effectuated the court's finding and decision dismissing the complaint (a resolution with which we agree). Consequently, we have repaired the judgment in the respect.
Concur — Lupiano, J.P., Silverman, Fein, Lane and Sullivan, JJ.