decided: May 2, 1974.
JEAN REDA, RESPONDENT,
ANTHONY REDA, APPELLANT
Reda v. Reda, 41 A.D.2d 848, reversed.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.
Memorandum. The order appealed from should be reversed, the judgment vacated, so much of the consolidated action as sought relief based upon the alleged marital status of the parties dismissed, and the case remitted to Special Term for redetermination and disposition of the interests of the parties in the respective property or properties, and also for a redetermination of what sum or sums, if any, are due plaintiff from defendant as a result of loans allegedly made by plaintiff to defendant.
Separate actions were commenced by plaintiff (1) to impress a trust on real property, and (2) for a divorce and repayment of loans allegedly made by plaintiff to defendant. Upon motion of plaintiff the actions were consolidated for trial and a single judgment entered thereafter in favor of plaintiff, which was affirmed on appeal.
The underlying judgment granted a divorce to plaintiff, together with $2,500 for counsel fees, $50 per week for support and sole use and possession of one house, owned by the parties as tenants in common. It further directed that defendant execute a deed conveying to plaintiff an undivided one-half interest in certain other premises and that he repay to plaintiff the sum of $2,153.09, representing the alleged loans, with interest, plus costs and disbursements.
The predicate for the decree of divorce and certain other benefits granted to plaintiff was or may have been based on or influenced by a finding at Special Term, "[that] a valid common law marriage was entered into by the plaintiff and defendant in March 1964 at Daytona Beach, Florida."
We are in accord with the views expressed in the dissent of Acting Presiding Justice Hopkins that no such marriage was proved and conclude as a matter of law that no such marriage was proved.
Order reversed, without costs, judgment vacated, so much of the consolidated action as sought relief based upon the alleged marital status of the parties dismissed, and the case remitted to Special Term for further proceedings in accordance with the memorandum herein.
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