246 A.D. 785 | N.Y. App. Div. | 1935
Upon an appeal from an interlocutory judgment of divorce in favor of the plaintiff on the ground of adultery of the defendant, interlocutory judgment modified by striking therefrom the provision that there are only two living issue of the marriage between the plaintiff, Charles H. Reed, and the defendant, Lillian, to wit, John Walter Reed and Charles H. Reed, Jr., and no other, and by striking out the second finding of fact; and, as so modified, the interlocutory judgment is unanimously affirmed, without costs. There is no allegation in the complaint as to the legitimacy of the defendant’s child Lillian and the amendment allowed upon the trial was merely to conform the pleading to the proof and made no reference to the question of legitimacy of Lillian. Furthermore, the proof adduced upon that subject was insufficient to sustain the second finding of fact contained in the decision and the provision contained in the interlocutory judgment which, in effect, finds and adjudges the illegitimacy of Lillian. Present — Young, Hagarty, Davis and Johnston, JJ.; Lazansky, P. J., not voting.
