In Cohen v. Cohen (286 App. Div. 1035, supra) it was urged that the evidence was insufficient because of the amount of time during the preceding five years defendant had been out of mental institutions and because the panel interview with defendant lasted only 10 minutes.Summary of this case from Weiss v. Weiss
October 31, 1955.
Present — MacCrate, Acting P.J., Schmidt, Beldock, Murphy and Ughetta, JJ.
In an action to annul a marriage under subdivision 5 of section 7 of the Domestic Relations Law, the appeals are from the interlocutory judgment in favor of respondent, from an order dated January 27, 1955, denying resettlement thereof to provide for payment of counsel fee for the trial and for the appeal, for payment of the cost of minutes and printing in the prosecution of the appeal, for the services of a medical expert used on behalf of appellant and for provision for visitation of the child of the marriage by appellant or her parents, and for other relief; and from an order dated June 5, 1955, denying to the special guardian ad litem a counsel fee and expenses for the appeal. Judgment, and order dated June 5, 1955, unanimously affirmed, without costs. Appeal from order dated January 27, 1955, dismissed, without costs. The order is not appealable. ( Bergin v. Anderson, 216 App. Div. 844; Genadeen Caterers v. Hotel Genadeen, 277 App. Div. 892.) However, even if the appeal were properly here, the order would be affirmed. The evidence warranted the finding that appellant had been incurably insane for five years. The provision of subdivision 5 of section 7 Dom. Rel. of the Domestic Relations Law, for the taking before a referee of testimony as to information acquired by a doctor while attending a patient in a State institution, was enacted to serve the public convenience and does not prohibit the appearance of such a doctor to testify at a trial. Here the doctors who were attached to the institution were members of the commission appointed by the court to inquire as to appellant's sanity and what they observed on the examination was not observed while attending appellant. Under such circumstances, there was no necessity to appoint a referee to take their testimony. Discretion was not improperly exercised by denial of the motions made subsequent to the trial. There is nothing to indicate that appellant personally had requested counsel in addition to the special guardian to appear for her or to apply for an allowance for the witness produced at the trial. Counsel and the witness voluntarily attended at the trial notwithstanding the absence of an order providing for an allowance for their services. Appellant made no affidavit that asks that she or her parents have visitation rights, or that shows that she is capable of visiting with the child of the marriage.