Minner v. Minner

Decision Date05 July 1924
Citation144 N.E. 781,238 N.Y. 529
PartiesMINNER v. MINNER.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Adele Minner against Robert L. Minner. Judgment of dismissal at Special Term was affirmed by the Appellate Division (208 App. Div. 820,203 N. Y. Supp. 941), by a divided court, and plaintiff appeals.

Reversed, and remitted to Special Term.

Appeal from Supreme Court, Appellate Division, Second Department.

Herman Hoffman, of New York City, for appellant.

LEHMAN, J.

The plaintiff has brought an action for the annulment of her marriage with the defendant on the ground of fraud. She alleges in her complaint that ‘for the purpose of inducing the plaintiff to consent to said marriage the defendant falsely and fraudulently represented to her that he was never married before and that he was of the same faith as the plaintiff.’ The defendant did not appear in or defend the action. After trial judgment was entered dismissing the plaintiff's complaint on the merits, and that judgment has been affirmed by the Appellate Division by a divided court.

At the trial the plaintiff testified that she met the defendant while traveling by boat to Providence. He told her that they were of the same religion, and that he was going to Providence to take a ship from there to England. He asked for her address, and subsequently he called at her home in New York and asked her to marry him. In answer to objections of her family ‘that a man who traveled on ships usually had a sweetheart in each port, or a wife,’ he said he ‘never had any love affair and never thought of matrimony before.’ The parties were married on August 25, 1922, and there is no issue of such marriage. The plaintiff further showed by documentary evidence that the defendant had married one Harriet Thompson at Glasgow, in Scotland, on December 2, 1920, and that no decree of divorce or dissolution was ever obtained in England or Scotland. She also presented a formal statement of the defendant, in which he admitted that he had deceived the plaintiff both as to his religion and earlier marriage. He stated that he had left his first wife and caused divorce proceedings to be instituted against her, but that he does not know whether he ever received a decree of divorce. He claims that he suffers from lapse of memory due to shell shock and injuries received during the war.

[1] The plaintiff apparently submitted proposed findings of fact and a conclusion of law in accordance with section 439 of the Civil Practice Act. The justice who heard the proofs marked with his initials some of the proposed findings as ‘Found’ and others as ‘Refused,’ and the plaintiff has excepted to each refusal to find. Among the facts which the justice at Special Term has found are that the parties were lawfully married on August 25, 1922, ‘that for the purpose of inducing plaintiff to consent to such marriage the defendant falsely and fraudulently represented to her that he was never married before, and that he was of the same faith as the plaintiff,’ and that these representations were untrue. Among the facts that he refused to find was that the plaintiff was induced by these misrepresentations to enter into the marriage. Except for these proposed findings, marked as indicated above, the justice at Special Term made no decision, though the judgment recites that the court has filed its decision ‘containing a statement of the facts found and directing judgment.’

In the case of Ventimiglia v. Eichner, 213 N. Y. 147, 151,107 N. E. 48, 49, this court laid down the rule that, where no decision has been made upon which the judgment can rest, ‘exact justice can be done only by remitting the case * * * for formal decision as required by law.’ Section 440 of the Civil Practice Act, formerly section 1022 of the Code of Civil Procedure, provides that ‘the decision of the court upon the trial of the whole issues of fact must state separately the facts found and conclusions of law and direct the judgment to be entered thereon, which decision when filed shall form part of the judgment roll.’ In accordance with that provision, before judgment was entered, the trial judge should have made a decision embodying the facts which he has found and a conclusion of law, drawn from such facts, that the complaint be dismissed, and that judgment should be entered thereon. He has not done so. His refusal to find in accordance with plaintiff's ‘statement of the facts which plaintiff deems established by the evidence’ (Civil Practice Act, § 439) shows only that he did not consider that these facts were established by the evidence. It does not show that the trial judge found that the evidence establishes other facts contrary to those which the plaintiff deems established, and the refusal of the plaintiff's proposed conclusion of law that ‘the plaintiff is entitled to an interlocutory judgment which shall provide for the...

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5 cases
  • Shonfeld v. Shonfeld
    • United States
    • New York Court of Appeals
    • January 10, 1933
    ......See Beard v. Beard, 238 N. Y. 599, 144 N. E. 908;Minner v. Minner, 238 N. Y. 529, 144 N. E. 781;Svenson v. Svenson, 178 N. Y. 54, 70 N. E. 120.        The representations in this case do not rise ......
  • Riedl v. Riedl, 2372.
    • United States
    • Court of Appeals of Columbia District
    • July 21, 1959
    ...1952, 303 N.Y. 506, 104 N.E. 2d 877, 880. 6. Tuchsher v. Tuchsher, 1959, 16 Misc.2d 1, 184 N.Y.S.2d 131. 7. Minner v. Minner, 1924, 238 N.Y. 529, 144 N.E. 781, 783. 8. Croce v. Croce, 1950, 199 Misc. 635, 100 N.Y.S.2d 9. Attar v. Attar, 1958, 15 Misc.2d 792, 181 N.Y.S.2d 265, 267. 10. Casol......
  • George v. Holstein-Friesian Ass'n of America
    • United States
    • New York Court of Appeals
    • July 5, 1924
  • O'Connell v. O'Connell
    • United States
    • United States State Supreme Court (New York)
    • September 17, 1957
    ...have influenced the consent of a man of average intelligence and prudence (see Beard v. Beard, 238 N.Y. 599, 144 N.E. 908; Minner v. Minner, 238 N.Y. 529, 144 N.E. 781; Svenson v. Svenson, 178 N.Y. 54, 70 N.E. 120). On the other hand Jones v. Jones, 189 Misc. 145, 69 N.Y.S.2d 223, rejects a......
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