Rychlovsky v. Rychlovsky

252 A.D. 893, 300 N.Y.S. 80, 1937 N.Y. App. Div. LEXIS 6706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1937
• Status: Published

Opinion

In an action for the annulment of the marriage on the ground of fraud, the plaintiff had an interlocutory judgment. The trial was unsatisfactory and inconclusive in that the plaintiff did not speak or understand the English language well, and the efforts of the interpreter to clarify the questions and answers were unsuccessful. It is, therefore, difficult to reach a conclusion on the proof contained in the record. Further, there was no proper foundation laid for a reading of the evidence of Joseph Belohlavelc, taken on some former trial or hearing. He should have been called before the court for oral examination and cross-examination. If the plaintiff understood the questions, his testimony was that he lived with the defendant meretriciously for a short period before marriage; and this fact east doubt upon his claim that he was defrauded by the defendant’s alleged representations as to her chastity. He also testified that he continued to reside and cohabit with defendant after discovery of the alleged fraud. If that be true, then he was not entitled to annulment. (Civ. Prac. Act, § 1139. See Bays v. Bays, 105 Misc. 492.) Interlocutory judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. For the purpose of granting a new trial, all findings are reversed. Appeal from order denying defendant’s motion to vacate the judgment and for a new trial, among other things, on the ground of newly-discovered evidence dismissed, as no determination of that appeal is now necessary. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.