Opinion
October 17, 1955.
In an action to annul a marriage on the ground of fraud, the appeal is from a judgment dismissing the complaint on the merits. The respondent defaulted in appearance, and the proof was taken before an Official Referee, upon a reference to hear and determine. Judgment, entered upon the decision of the Official Referee, reversed on the law and the facts, without costs, and the action remitted to Special Term for a hearing de novo. In our opinion, the evidence adduced on the hearing, if credited, established a prima facie case. The learned Official Referee, however, declined to grant an annulment because the proof did not "satisfactorily show conformity to section 1143," of the Civil Practice Act. It is not clear whether he considered the evidence insufficient as a matter of law, or whether, for reasons stated in his opinion, he discredited the testimony of the witnesses. A new hearing should be had, at which the credibility of the witnesses, on the issues of fraud and condonation, may be more adequately explored.
I agree with the majority that the evidence, if credited, complied with section 1143 of the Civil Practice Act. The evidence adduced at the hearing before the Official Refere was not contradicted by direct evidence or legitimate inferences; it was not opposed to the probabilities, and there is no reason for denying it conclusiveness. Not only was there no contradiction in the testimony of the witnesses, as the Official Referee indicated, but any alleged contradiction in the testimony as to the promise before the marriage to have children is of no consequence because such a promise is implied. ( Mirizio v. Mirizio, 242 N.Y. 74; Caleca v. Caleca, 278 App. Div. 771.) This court has reversed a judgment dismissing the complaint and directed entry of an interlocutory judgment of annulment on substantially similar testimony. ( Di Napoli v. Di Napoli, 276 App. Div. 1089.) Wenzel, J., concurs with Beldock, J.