261 A.D. 930 | N.Y. App. Div. | 1941
Action by the appellant’s divorced wife to recover for support and maintenance furnished to the infant son of the parties. Judgment of divorce was granted in the State of New Jersey in favor of the husband, upon the wife’s misconduct, and the decree contained a provision for the support of the child, in the custody of the wife. Judgment in favor of plaintiff reversed on the law and the facts, with costs, and judgment dismissing the complaint on the merits directed in favor of defendant, with costs. Findings Nos. 22 to 28, inclusive, and Nos. 30 to 32, inclusive, reversed. Other findings approved. Conclusions of law Nos. 2 to 6, inclusive, and No. 8, reversed. Other conclusions approved. Defendant’s proposed findings and conclusions of law, in so far as found and allowed, are approved. In addition, defendant’s proposed findings Nos. 14 to 21, inclusive, are found; and defendant’s proposed conclusions of law Nos. 5, 8, 10, 11 and 13 are approved and adopted. Under the facts in the ease the failure to take steps to obtain reimbursement for support of the child for a period of more than seven years raises a strong presumption that the support was given voluntarily, without expectation of reimbursement from the father. In the opinion of the court that presumption is not overcome by the proof adduced on behalf of the plaintiff. Testimony given by way of deposition should be scanned with great care. The whole evidence requires a finding that the plaintiff did not furnish support for her child with expectation of reimbursement therefor from the appellant. The defenses which this court has heretofore held insufficient established the law of the case on this appeal. Lazansky, P. J., Carswell, Adel and Close, JJ., concur; Johnston, J., concurs but still adheres to the views expressed in his dissenting opinion in Smith v. Smith (255 App. Div. 652, 662). Settle order on notice.