40 N.Y.2d 938 | NY | 1976
Memorandum. The order of the Appellate Division should be affirmed essentially for the reasons stated in its memorandum opinion. We note particularly that, though the presumption in favor of the validity of the second marriage is a powerful one, requiring "strong and satisfactory” proof to the contrary from one who would attack it (Whittley v Whittley, 60 Misc 201, 203) "even though this might require the proof of a negative” (Apelbaum v Apelbaum, 7 AD2d 911; see, also, Matter of Dugro, 261 App Div 236, affd 287 NY 595; Boyd v Boyd, 252 NY 422), when, as here, the deceased wife’s second husband offered proof not only as to the celebration of his "marriage” to her but also as to the time and place of her divorce from her first husband, thus narrowing the area as to which negative proof would be relevant, the evidence proffered by the first husband to the effect that no such divorce decree existed suffices, under these circumstances, to support a finding that the presumption has been rebutted (see CPLR 4521; Richardson, Evidence [10th ed], § 94, pp 69-70; cf. Brill v Brill, 10 NY2d 308). This is especially so in view of the failure of the appellant second husband to avail himself of the evidentiary hearing offered to him by the Appellate Division within the time allotted for such a hearing.
Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur; Judge Jones taking no part.
Order affirmed, with costs payable to respondents by appellant personally, in a memorandum.
