Kahanowitz v. Kahanowitz

235 A.D. 828

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1932
• Status: Published

Opinion

Sherman, J.

(dissenting). At the close of the trial of this separation suit, the court upon granting judgment dismissing the complaint upon the merits, expressed the view that defendant’s friendship for another woman, a cousin of plaintiff, was the chief cause of breaking up their home. Within a few days after the trial and before findings had been submitted or the judgment entered, plaintiff presented her own affidavit, and that of four individuals who were related to the woman referred to by the learned trial justice, and who stated facts showing an open meretricious relationship for many years between defendant and this woman, indicating virtually that they had been and were living together. These affiants explained that they had declined, because of their relationship to defendant, to give the plaintiff this information when she had requested it in advance of the trial. With this evidence before the court, the plaintiff would have in all probability triumphed in her law suit. The door of the court should have been opened for the reception of this important evidence which plaintiff had not been able to produce though she had used due diligence to procure it before the trial. The judgment and order appealed from should be reversed and a new trial ordered on the ground of newly-discovered evidence. Finch, P. J., concurs.