Weiman v. Weiman , 52 N.Y.S.2d 263 ( 1945 )

The plaintiff brought an action for separation and the defendant counterclaimed for annulment upon the ground that the plaintiff had concealed from him the fact that she had been adjudged insane and confined to a State mental institution prior to her marriage. The plaintiff failed to reply to the counterclaim and the defendant was granted judgment dismissing plaintiff’s complaint and for annulment on his counterclaim. Thereafter, the plaintiff moved to open her default and serve a reply alleging condonation. Her default was opened only to the extent of allowing her to serve her reply and to try the issues thus raised. After such trial, the court dismissed defendant’s counterclaim on the ground that plaintiff’s concealment had been condoned by defendant after a full disclosure. Prom the judgment entered the defendant appeals. Judgment reversed on the law and the facts, without costs, and a new trial granted. The finding that the defendant condoned the plaintiff’s fraud and concealment is clearly against the weight of the evidence. Close, P. J., Carswell, Adel, Lewis and Aldrich, JJ., concur.