Caleca v. Caleca

278 A.D. 771, 103 N.Y.S.2d 752, 1951 N.Y. App. Div. LEXIS 4693

Opinion

In an undefended action to annul a marriage upon the ground of fraud, interlocutory judgment dismissing the complaint, entered after trial before an Official Referee appointed to hear and determine, reversed on the law and the facts, without costs, and interlocutory judgment of annulment directed to be entered. Plaintiff’s proof is not incredible as a matter of law, and the Official Referee believed and credited it. Annulment was refused and the complaint was dismissed upon the stated ground that the proof required by section 1143 of the Civil Practice Act, other than the declaration or confession of the parties, was not adduced. It is our opinion that the proof, constituted satisfactory evidence, other than plaintiff’s testimony, that defendant before the marriage made false representations upon which plaintiff relied; that defendant then knew such representations to be false and fraudulently made them to induce plaintiff to marry him; and that plaintiff has not cohabited with defendant with knowledge of the fraud. (Ferguson v. Ferguson, 271 App. Div. 976; Ferrillo v. Ferrillo, 272 App. Div. 779; Fundara v. Fundaro, 272 App. Div. 825.) New findings of fact will be made. Appellant is directed to submit order. Johnston, Acting P. J., Adel, Sneed, Wenzel and MaeCrate, JJ., concur.