Murphy v. Murphy

271 A.D.2d 979

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1947
• Status: Published

Opinion

Remission by the Court of Appeals to this court after reversal of a judgment, for determination of questions of fact heretofore raised. (Murphy v. Murphy, 296 N. Y. 168.) On appeal of defendant wife, judgment in an action for a separation, entered September 17, 1945, denying a separation to both plaintiff and defendant, unanimously affirmed, without costs. When this case was considered in the first instance this court modified the judgment. It did so after making a supplemental finding based on the undisturbed findings of fact of the official referee, and therefore necessarily approved and adopted those findings, which covered all the questions of fact raised on the appeal. It was confronted with a procedural difficulty arising out of the failure of the plaintiff husband to appeal from a denial of relief to which he was entitled under the findings of fact of the official referee. This procedural bar, or difficulty, we deemed precluded the court’s denying to the defendant wife the affirmative relief she sought as an appellant, based on the findings of the official referee and his refusal of relief to the nonappealing plaintiff husband, despite certain findings of fact favorable to him. On this remission, as we construe it, the Court of Appeals has intimated that what we deemed to be a procedural bar, in fact had no such effect, despite the rulings in the eases cited in our prior decision. (270 App. Div. 953.) We, therefore, reaffirm the findings of fact of the official referee. Present — Hagarty, Acting -P. J., Carswell, Adel and Nolan, JJ.; Aldrich, J., deceased.