Opinion
March, 1935.
Interlocutory judgment for the plaintiff annulling his marriage with the defendant on the ground that she had a prior husband living at the time of her marriage to the plaintiff, affirmed, without costs. The uncontradicted testimony of Carmine Cacavallo that he knew defendant and her first husband, Joseph Cacavallo, and was present at their marriage in 1899, and that he saw said Joseph Cacavallo "about fourteen years ago," which was about twenty years after the marriage of plaintiff and defendant, supported, as it is, by the testimony of Cerullo, who was also present at said marriage and positively identified the defendant as the person married to Joseph Cacavallo at that time, is, in the absence of any proof to the contrary, sufficient to support the findings and judgment. ( Boyd v. Boyd, 252 N.Y. 422.) Hagarty, Carswell and Tompkins, JJ., concur; Scudder and Davis, JJ, dissent and vote to reverse on the ground that the proof that the first husband was living at any time subsequent to the second marriage was insufficient.