Opinion
June 29, 1959
Appeal from a judgment dismissing appellant's amended complaint at the close of her case and declaring that a divorce obtained by respondent against appellant in the State of Nevada is valid. Appellant brought this action to declare null and void a marriage between respondent and another woman. Respondent interposed an amended answer containing a defense and counterclaim demanding dismissal of the amended complaint and judgment declaring that the divorce obtained by him in the State of Nevada against appellant is valid and that she is no longer his lawful wife. Judgment reversed, with costs, and a new trial granted. Appellant introduced evidence which indicated that respondent was not domiciled in Nevada for six weeks prior to the commencement of the action in Nevada, that he left Nevada shortly after the date of the Nevada decree and that his residence or stay in Nevada was not accompanied by a bona fide intention to make Nevada his home and to remain there permanently or at least for an indefinite period of time. While the force of that evidence might have been weakened or destroyed by an explanation thereof by respondent or by his witnesses, he did not have the opportunity to testify or to present witnesses to explain that evidence. In our opinion, appellant made out a prima facie case (see, e.g., Selkowitz v. Selkowitz, 272 App. Div. 107 1; cf. Ratkowsky v. Ratkowsky, 278 App. Div. 847). Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.