Giglio v. Giglio , 139 N.Y.S.2d 700 ( 1955 )

In an action for a judgment declaring that the Nevada decree of divorce obtained by respondent is null and void and that appellant is her lawful husband, order denying appellant’s motion for a new trial on the ground of newly discovered evidence reversed and a new trial granted, without costs. Appellant did not appear in the action in Nevada. The newly discovered evidence, as alleged, establishes that respondent’s residence there was not bona fide, and that her testimony relating thereto upon the trial herein was untrue and calculated to mislead the court. If credited, it must lead to a different result. Not until the aforesaid testimony was given did appellant have reason to believe that the matter which is the subject of the newly discovered evidence would be material. Therefore, he could not reasonably be expected to have discovered the facts now alleged, prior to the trial. In the circumstances, denial of the motion was an improvident exercise of discretion. Wenzel, MacCrate, Schmidt and Ughetta, JJ., concur; Nolan, P. J., dissents and votes to affirm.