Weiger v. Weiger

270 A.D. 770, 59 N.Y.S.2d 444, 1946 N.Y. App. Div. LEXIS 3886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1946
• Status: Published

Opinion

Action by plaintiff husband on a complaint in which he seeks an absolute divorce. The defendant interposed an answer in which she counterclaimed for an absolute divorce. The plaintiff appeals from the judgment “in favor of the defendant- and against the plaintiff, and from each and every part of said judgment as well as from the whole thereof.” Judgment reversed on the law and the facts, without costs, and judgment directed fb be entered on a decision that finds defendant guilty of misconduct, as alleged in the complaint, and finds the plaintiff to be barred from affirmative relief because of similar misconduct, as alleged in the counterclaim, without costs. The proof overwhelmingly establishes the allegations of the complaint, likewise the proof overwhelmingly establishes the plaintiff’s misconduct, as alleged in the defense and counterclaim, and hence, on the theory of recrimination, there may be no judgment dissolving the marriage, (Civ. Prac. Act, § 1153, subd. 4; Kapitola y. Kapitola, 189 App. Div. 459, 461; 1 Nelson on Divorce and Annulment [2d ed.], § 10.05.) Findings of fact inconsistent herewith and conclusions of law are reversed. New findings and conclusions will be made. Settle order on notice. Lewis, P, J., Hagarty, Carswell, Adel and Nolan, JJ., concur.