Opinion
May, 1924.
Interlocutory judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. Finding of fact V, and so much of VI as finds that Rocco Tirello, defendant's husband, is alive, and that the marriage between defendant and said Rocco Tirello is still in force and effect, and conclusions of law I to III, inclusive, reversed on the ground that they are against the weight of the evidence. The burden was upon plaintiff to establish that defendant's first husband was alive at the time of her marriage to plaintiff, and he cannot rely upon the presumption of life as against the presumption of innocence and validity of the marriage which he seeks to annul. ( Palmer v. Palmer, 162 N.Y. 130; Matter of Meehan, 150 App. Div. 681; Smith v. Smith, 112 Misc. Rep. 371.) Kelly, P.J., Rich, Manning, Kelby and Kapper, JJ., concur. Settle order on notice.