Harris v. Harris , 3 A.D.2d 892 ( 1957 )

Interlocutory judgment modified on the law and facts in accordance with the memorandum and as modified affirmed, with costs to the defendant. Certain findings of fact disapproved and reversed and new findings made. Memorandum: In this action for an annulment, the plaintiff husband failed to prove that his choice of a wife was induced by fraud. It appears from his own testimony that the parties lived together as man and wife, experiencing no difficulties until the arrival of a baby, when defendant proved unequal to her new responsibilities. Breach of contract or discord subsequent to the marriage, however, is no ground for an annulment in New York. That part of the judgment which awards to plaintiff custody of the infant child should be affirmed (Civ. Prac. Act, 1170-a), for defendant has proved an incompetent and unwilling mother. We are not passing on the rights of either party to this proceeding to a separation. All concur. (Appeal from an interlocutory judgment of Monroe Equity Term, granting to plaintiff an annulment and custody of the issue of the marriage). Present — McCurn, P. J., Vaughan, Williams, Bastow and Goldman, JJ.