SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 11, 1968
IN THE MATTER OF THE ESTATE OF ANTHONY LA PORTO, DECEASED. SALVATORE LA PORTO, APPELLANT, JOHN SANTELLA ET AL., RESPONDENTS
Concur -- Botein, P. J., Stevens, Eager, Tilzer and Rabin, JJ.
Decree unanimously reversed, on the law and the facts, and the matter remanded to the Surrogate for the taking of additional proof, if any, with $50 costs and disbursements to both appellant and respondents payable out of the estate. The record in its present form is deficient in acceptable evidence proving the existence of the Mexican divorce decree. Apart from unexplained failure to produce a copy of the decree from an official Mexican source, it is noted, for example, that the third wife of Melchiore Santella, although living and within the jurisdiction, was not subpoenaed, and that Thomas Santella, who to some extent assisted in the divorce arrangements, made no mention of a journey by his father to Mexico (see Rosenstiel v. Rosenstiel, 16 N.Y.2d 64). In the exercise of discretion we deem it appropriate to afford respondents an opportunity to supplement their proof in such respects as they may be advised.
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