Bolden v. Bolden

29 A.D.2d 520, 285 N.Y.S.2d 959, 1967 N.Y. App. Div. LEXIS 2790

Opinion

Order entered December 27, 1966, unanimously reversed, on the law and the facts, without costs or disbursements, and the matter remitted to the Family Court for the purpose of holding a new hearing, at which proof shall be taken on the issue as to whether the respondent wife’s appearance by counsel in the Mexican court was fraudulently induced and upon other relevant issues constituting the basis for respondent wife’s claimed right to support. The concededly incomplete transcript of the hearing submitted to this court includes no testimony as to the representations constituting the fraud relied upon by the respondent wife or the circumstances under which the petitioner was induced by appellant to sign a power of attorney and to consent to an appearance in the divorce proceeding to :be instituted in Mexico. The discussion of counsel, briefs of counsel, and reference to matters de hors the record do not constitute a substitute for that testimony and proof prerequisite to the making of a valid order. (See, City of New York v. Sullivan, 246 App. Div. 55; Kantrowitz v. Kantrowitz, 21 A D 2d 654; Querze v. Querze, 290 N. Y. 13.) Concur — Steuer, J. P., Capozzoli, Tilzer, McGivern and Witmer, JJ.