Rubin v. Joseph

211 A.D. 871

Opinion

Judgment reversed upon the law and a new trial granted, with costs to abide the event. Plaintiffs, upon the trial, relied entirely upon the interlocutory judgment in the annulment suit to prove the physical incapacity of the defendant. The final judgment had in fact not then been entered, and the interlocutory judgment was not res adjudicata against the defendant upon this question. (Brown v. Cleveland Trust Co., 233 N. Y. 399, 405; Petit v. Petit, 45 Misc. 155.)

Kelly, P. J., Jaycox and Young, JJ., concur; Kelby, J., dissents and votes to dismiss the complaint, upon the ground that the marriage was not void ab initio, but voidable only at the election of the wife, and that the decree of annulment simply declared the marriage void from the date of the decree, with whom Kapper, J., concurs.