Mezzacappa v. Mezzacappa , 263 A.D. 899 ( 1942 )

Action by plaintiff husband against defendant wife for absolute divorce. Interlocutory judgment in favor of plaintiff unanimously affirmed, without costs. There was a defect in formal proof, which was not made the subject' of objection on the trial, in respect, of whether or not the defendant had obtained a prior decree of divorce. The question is raised for the first time on this appeal. It is not asserted that there is any such decree outstanding. It furnishes no ground for a reversal on the merits. However, a final decree should not be entered unless formal proof on this phase be furnished to the Special Term, to which the matter is hereby remitted for such purpose. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.