Opinion
January 18, 1957
Appeal from the Oneida Equity Term.
Present — McCurn, P.J., Vaughan, Kimball, Williams and Bastow, JJ.
Interlocutory judgment reversed on the law and facts, without costs of this appeal to either party, and a new trial granted. Memorandum: The complaint herein sought to annul the marriage between the parties upon the dual grounds that plaintiff's consent thereto had been obtained by force or duress and that her consent had similarly been obtained by certain false and fraudulent representations made to her by the defendant. Upon the trial the plaintiff expressly abandoned the latter cause of action and elected to stand upon the cause of action alleging force or duress in obtaining her consent to the marriage. The only decision of the trial court is contained in the findings of fact which include only sketchy findings as to force and duress and in addition make affirmative findings as alleged in the complaint as to false and fraudulent representations made by the defendant. There is no evidence to sustain these findings. In the normal case we could make new findings if the decision of the trial court was clear. Here, however, a close issue of fact was presented as to plaintiff's right to a decree based upon force or duress. Upon this phase of the case the findings are conclusory in form. In addition the facts found upon the issue of fraudulent representations are not supported by any evidence. Moreover, and most important, the trial court failed to pass upon defendant's separate defense that plaintiff with full knowledge of the facts relating to force and duress voluntarily cohabited with defendant as his wife. While not passing upon the subject this presented possibly a more hazardous obstacle to plaintiff's right to a decree than any other phase of the case. In the interests of justice the judgment should be reversed and a new trial granted, without costs to either party. All concur, except WILLIAMS, J., who dissents and votes for dismissal of the complaint on the ground that no cause of action has been made out as matter of law.