Johnson v. Johnson

Bookstein, J.

This is an action to annul a marriage. The action was commenced February 3, 1947. The defendant has defaulted in appearance and pleading.

The marriage occurred on July 18,1930, and there is one child of the marriage, born in 1931. Sometime in 1931 defendant left plaintiff.

There is no satisfactory proof of any fraudulent representations. At most the proof shows a change of mind, which does not constitute fraud, or prove the existence of any fraudulent intention at the time of or prior to the marriage. The facts may warrant an action for a separation but they do not justify an action for annulment.

Moreover, even if the facts could be said to justify an action for an annulment, an annulment of the marriage must be denied.

Section 1143 of the Civil Practice Act provides as follows : “In an action brought to annul a marriage, a final judgment annulling the marriage shall not be rendered by. default for want of an appearance or pleading, or upon a trial of an issue, without proof of the facts upon which the allegation of nullity is founded. The declaration or 'confession of either party to the marriage is not •alone sufficient as proof, but other satisfactory evidence of the facts must be produced.” (Italics supplied.)

In this case, the only testimony is that of the husband so that at most we have either his declarations or the declarations or confession of the wife, beyond which there is no other satisfactory evidence of the facts alleged. In such a situation, a judgment of annulment is not authorized by the foregoing section of the Civil Practice Act. (Steimer v. Steimer, 37 Misc. 26; Anonymous v. Anonymous, 69 Misc. 489; Chambers v. Chambers, 32 N. Y. S. 875; Feig v. Feig 232 App. Div. 172; Zoske v. Zoske, 64 N. Y. S. 2d 819.)

Accordingly the application for a judgment of annulment is denied and the complaint is dismissed. Submit decision and. judgment accordingly.