Blek v. Blek , 123 N.Y.S.2d 3 ( 1953 )

In an annulment action, order denying plaintiff’s motion for a new trial on the ground of newly discovered evidence affirmed, with costs. No opinion. Nolan, P. J., Adel, and Beldock, JJ., concur; Wenzel and Schmidt, JJ., dissent and vote to reverse the order and to grant a new trial, with the following' memorandum: On April 30, 1951, appellant began an action for annulment in New York County, on the ground that at the time the parties were married respondent was not divorced from one Oscar Engelman, then and now living. On May 14,1951, respondent began an action for separation from appellant, in Nassau County, with which the New York County action was consolidated. Framed issues in the annulment action were tried by a jury. The principal question litigated was whether the common-law marriage in 1927 of Morris and Georgia Engelman was valid and subsisting at the time of the ceremonial marriage between respondent and Engelman in 1933. The jury answered that question in the affirmative; thereupon appellant’s complaint was dismissed. The judgment entered thereon was affirmed by this court, one Justice dissenting (281 App. Div. 692). Respondent under the name of Engelman brought an action to annul her marriage to Oscar Engelman on the ground of the existence of the common-law marriage of the Engelmans at the time Oscar Engelman married respondent. The action was undefended, but Oscar Engelman testified at the trial which resulted in a dismissal of respondent’s complaint. Thereupon appellant moved for a new trial on the ground that the dismissal of the complaint in respondent’s annulment action and certain evidence given therein constituted newly discovered evidence. The motion was referred to and denied by the Justice who presided on the jury trial of the framed issues in appellant’s annulment action. The judgment in respondent’s annulment action is newly discovered evidence, which will change the result in appellant’s annulment action. (Atkinson v. Atkinson, 217 App. Div. 96.)