130 Misc. 905 | N.Y. Sup. Ct. | 1927
This is an action for absolute divorce. The alleged adultery of the defendant was the only issue raised by the answer. This question was presented to the jury upon a framed issue and a finding in the affirmative was returned. The presiding justice died before granting an interlocutory judgment and application upon notice has been made at Special Term for the relief demanded in the complaint. The action was not discontinued by the death of the presiding justice; it only became necessary to make the application for judgment elsewhere. (Civ. Prac. Act, § 79.) The motion for interlocutory judgment is properly before the court at Special Term. (Olmsted v. Olmsted, 210 App. Div. 393.)
The trial justice submitted the interrogatory in relation to the alleged adultery of the defendant orally to the jury and they returned orally an affirmative answer. The clerk, in accordance with rule 165 of the Rules of Civil Practice, made the appropriate entry in the court minutes. The defendant protests that a judgment cannot be granted upon this finding for the reason that it is either a special verdict or a special finding and the question and answer should have been in writing and filed with the clerk pursuant to Civil Practice Act (§ 459), which provides that “ the special verdict or special finding must be in writing; it must be filed with the clerk and entered in the minutes.”
Carmody (N. Y. Practice, 448) refers to the finding upon the issue of adultery as a special verdict. In Anderson v. Anderson (103 Mise. 427, 431) the court took a contrary view, declaring it to be in the nature of a finding upon framed issues. The finding of the jury, however, upon the issue of adultery is not merely advisory but is binding upon the court (Lowenthal v. Lowenthal, 157 N. Y. 236) and is a. special finding falling within such designation in section 459. The statute being mandatory, it follows that the question and answer should have been in writing and filed with
Motion for interlocutory judgment of divorce granted.