Basha v. Basha

In an action by a wife to annul a marriage, the appeal is from a judgment entered after trial dismissing the complaint and awarding sole custody of the child of the parties to appellant, and directing- appellant to pay a fee to respondent’s counsel. Judgment modified on the law and the facts by striking therefrom the first ordering paragraph and by inserting in lieu thereof a provision annulling the marriage. As so modified, judgment unanimously affirmed, without costs. The findings of fact insofar as they may be inconsistent herewith *694are reversed and new findings are made as indicated herein. In our opinion, there is sufficient competent proof that at the time of the marriage respondent was incapable of understanding the nature and consequences thereof, that appellant was then ignorant of respondent’s mental disorder, and that she did not cohabit with him after her discovery of such condition. (People v. Austin, 199 N. Y. 446, 452; Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106, 111-112; Edington v. Ætna Life Ins. Co., 77 N. Y. 564, 569-570; Smith v. Smith, 243 App. Div. 580.) Present — Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.