Levey v. Levey

169 A.D. 966, 153 N.Y.S. 1125

Opinion

To grant or to withhold leave to discontinue a matrimonial action is within the court’s discretion, which ordinarEy is not reviewed on appeal. EspeciaEy are we disinclined to such review in a case Eke this, where the ■proofs at successive hearings have been fully taken; both parties having testified in the presence of the trial judge, and the hearings before him having been unreservedly closed. Leave to discontinue in such circumstances depends on plaintiff’s showing good faith, honesty and sincerity. This plaintiff, however, demands annulment of her marriage for defendant’s incapacity, which she says existed at the time of the marriage and remains incurable. She must show strong grounds, which do not appear in this record, to discontinue the annulment suit already tried, for the declared purpose of starting a divorce suit based on the inconsistent charge that defendant, during the month of March, following the February marriage, committed adultery. The orders denying leave to discontinue are, therefore, affirmed. Stapleton, Mills and Putnam, JJ., concurred; Thomas, J., concurred in the result; Jenks, P. J., not voting.