Opinion
March 13, 1950.
Action to annul a marriage on the ground of fraud. Plaintiff appeals from a judgment dismissing her complaint on the merits. Defendant defaulted in appearance and the proof was taken before an Official Referee, appointed to hear and determine, on whose decision judgment was entered. Judgment reversed on the law and the facts, without costs, and a new trial granted. The findings of the Official Referee are contrary to and against the weight of the credible evidence. ( Fundaro v. Fundaro, 272 App. Div. 825; Fornatora v. Fornatora, 275 App. Div. 847, and cases cited therein.) The new trial should be at a Special Term or before another referee. Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.