Smith v. Smith

273 A.D. 987, 77 N.Y.S.2d 902, 1948 N.Y. App. Div. LEXIS 5609

Opinion

This is an appeal from a judgment entered on the 16th day of February, 1948, in the Madison County Clerk’s office, dismissing the complaint herein. The action was brought for annulment of marriage. The complaint alleged that the plaintiff was induced to marry the defendant through false and fraudulent representations previous to said marriage. The court found that the defendant falsely represented that she had never been previously married; that the plaintiff believed said statements and representations to be true; that plaintiff after said marriage discovered said representation to be wholly untrue and that defendant had been previously married to one George Mieklus, having been married to said Mieklus on June 3, 1944. The defendant offered no proof and did not contest the action. Judgment reversed, on the law, without costs. The court hereby disapproves of and annuls conclusions of law numbered 1 and 2 made by the trial court. The court makes the following conclusions of law: That the plaintiff is entitled to an interlocutory decree annulling his marriage to the defendant on the ground of fraud and the Clerk of the County of Madison is hereby directed to enter the usual interlocutory decree of annulment on this determination. Heffernan, Foster, Bussell and Deyo, JJ., concur; Hill, P. J,5 dissents.