Finn v. Finn
New York Supreme Court
Appeal from an order denying defendant’s motion for the con firmation of a referee’s report and for judgment thereon, and setting aside, vacating and discharging the referee’s findings and report in an action for divorce on the ground of adultery. The complaint averred that the plaintiff was duly married to the defendant on a certain day, and that she continued to live with him as his wife till a certain date, being for about ten years.
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Appeal from an order denying defendant’s motion for the con firmation of a referee’s report and for judgment thereon, and setting aside, vacating and discharging the referee’s findings and report in an action for divorce on the ground of adultery. The complaint averred that the plaintiff was duly married to the defendant on a certain day, and that she continued to live with him as his wife till a certain date, being for about ten years. The' answer admitted the allegations except that it denied that he was ever married to the plaintiff “ only as hereinafter stated.” The statement afterwards…
1Opinion of the Court
Learned, P. J.:
The appellant urges that there was no competent proof that the defendant was the husband of the plaintiff, and that, therefore, he was admissible as a witness. The fact that a marriage had taken place between the parties is alleged in the complaint. It is admitted in the answer; only the defendant avers a prior marriage with Catherine, and hence the invalidity of that between him and the plaintiff. This is the averment of a distinct fact, not connected with the fact of the second marriage. The admission plainly means that the ceremony had been performed between plaintiff and…
2Cases cited4 opinions
- Southwick v. . SouthwickNew York Court of Appeals · 1872
- Bissell v. BissellNew York Supreme Court · 1869
- Matteson v. New York Central RailroadNew York Supreme Court · 1862
- Dennis v. . CrittendenNew York Court of Appeals · 1870