Peterson v. Peterson

Appellate Division of the Supreme Court of New York

Peterson v. Peterson

255 A.D. 537, 8 N.Y.S.2d 386, 1938 N.Y. App. Div. LEXIS 4796

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1938

StatusPublished

Cited by2 cases

This text of 255 A.D. 537 (Peterson v. Peterson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peterson v. Peterson, 255 A.D. 537, 8 N.Y.S.2d 386, 1938 N.Y. App. Div. LEXIS 4796 (N.Y. Ct. App. 1938).

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Opinion

Per Curiam.

Plaintiff commenced this action for an annulment of his marriage with the defendant on October 4, 1937, twelve years after the marriage which took place on October 7, 1925. His claim is that he did not learn until May, 1937, of the alleged premarital fraudulent intent of defendant on which he predicates his suit for annulment. Plaintiff instituted a separation action in 1927 which was settled by a separation agreement recognizing the marriage. Later, on plaintiff’s default, a decree of separation was granted to defendant on her counterclaim, in 1934, nine years after the marriage. At that time no such claim was made. Indeed plaintiff’s sworn statements in his complaint in that separation action contradict his present belated contention. Claims of this kind unless established by clear and convincing proof would open ' wide the door to procuring annulment of marriages where absolute divorce could not be obtained upon the statutory ground. In the light of all the facts disclosed plaintiff’s contention and the evidence alleged to support it are tenuous. In our opinion the trial court was entirely justified in setting aside the jury’s verdict as against the weight of the credible evidence. The order setting aside the jury’s verdict and directing a new trial should be affirmed, with costs.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Order unanimously affirmed, with costs and disbursements.

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Per Curiam.

Plaintiff commenced this action for an annulment of his marriage with the defendant on October 4, 1937, twelve years after the marriage which took place on October 7, 1925. His claim is that he did not learn until May, 1937, of the alleged premarital fraudulent intent of defendant on which he predicates his suit for annulment. Plaintiff instituted a separation action in 1927 which was settled by a separation agreement recognizing the marriage. Later, on plaintiff’s default, a decree of separation was granted to defendant on her counterclaim, in 1934, nine years after the marriage. At that time no such claim was made. Indeed plaintiff’s sworn statements in his complaint in that separation action contradict his present belated contention. Claims of this kind unless established by clear and convincing proof would open ' wide the door to procuring annulment of marriages where absolute divorce could not be obtained upon the statutory ground. In the light of all the facts disclosed plaintiff’s contention and the evidence alleged to support it are tenuous. In our opinion the trial court was entirely justified in setting aside the jury’s verdict as against the weight of the credible evidence. The order setting aside the jury’s verdict and directing a new trial should be affirmed, with costs.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Order unanimously affirmed, with costs and disbursements.

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Bluebook (online)

255 A.D. 537, 8 N.Y.S.2d 386, 1938 N.Y. App. Div. LEXIS 4796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peterson-v-peterson-nyappdiv-1938.

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