Jacobsen v. Jacobsen

This is an application pursuant to section 549 of the Civil Practice Act to set aside a decision made herein on April 12, 1954, in which the plaintiff was found entitled to a decree of separation (205 Misc. 584). The principal question involved is whether an excusable failure to present evidence upon trial is the sort of ‘ ‘ error ’ ’ which would warrant the relief provided by the aforesaid section.

The theory of the plaintiff’s cause upon trial was the defendant’s failure to indulge in marital intercourse over a substantial period of time, despite plaintiff’s request therefor. It was the…