281 A.D. 692 | N.Y. App. Div. | 1952
— In an action to annul a marriage on the ground that the respondent was the undivorced wife of one Morris Engelman, then living, the appeal is from the “verdict of the jury” and the judgment dismissing the action, after trial of framed issues. Judgment affirmed, with costs. No opinion. Appeal from the verdict of the jury dismissed, without costs. No appeal lies therefrom. Nolan, P. J., Carswell, Johnston and Adel, JJ., concur; Wenzel, J., concurs in the dismissal of the appeal from the verdict of the jury, but dissents as to the affirmance of the judgment and votes to reverse the judgment and to grant a new trial, with the following memorandum: The finding of the jury with respect to the existence of the common-law marriage between Morris Engelman and Georgia Hartwell is against the weight of the evidence. I do not believe the “holding out” to be sufficient. The fact that they may have told two friends that they were married is not enough. The establishment of a bona fide marital relation requires acts more solemn or of more probative weight, such as the raising of a family (Rudyk v. Rudyk, 278 App. Div. 837), the joint purchase of property, the execution of mutual wills or similar conduct. There is no such probative proof here. I do not believe Engelman’s testimony to be worthy of credence, for he would find himself with a wife to support if his marriage to this plaintiff were adjudged to be valid.
