MATTER OF BROWN, 40 N.Y.2d 938 (1976)

358 N.E.2d 883, 390 N.Y.S.2d 59

In the Matter of the Estate of MABEL B. BROWN, Also Known as MABEL B. SWARTOUT, Deceased. JULIAN O. BROWN et al., Respondents; PERRY SWARTOUT, Appellant.

Court of Appeals of the State of New York.Argued October 13, 1976
Decided November 16, 1976

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, RICHARD J. BOOKHOUT, S.

Page 939

James M. Reilly and Arthur E. Seybolt for appellant.

William A. Cremo for respondents.

MEMORANDUM. The order of the Appellate Division should be affirmed essentially for the reasons stated in its memorandum opinion. We note particularly that, though the presumption in favor of the validity of the second marriage is a powerful one, requiring “strong and satisfactory” proof to the contrary from one who would attack it (Whittley v Whittley, 60 Misc. 201, 203) “even though this might require the proof of a negative”(Apelbaum v Apelbaum, 7 A.D.2d 911; see, also, Matter of Dugro, 261 App. Div. 236, affd 287 N.Y. 595; Boyd v Boyd, 252 N.Y. 422), when, as here, the deceased wife’s second husband offered proof not only as to the celebration of his “marriage” to her but also as to the time and place of her divorce from her first husband, thus narrowing the area as to which negative proof would be relevant, the evidence proffered by the first husband to the effect that no such divorce decree existed suffices, under these circumstances, to support a finding that the presumption has been rebutted (see CPLR 4521; Richardson, Evidence [10th ed], § 94, pp 69-70; cf. Brill v Brill, 10 N.Y.2d 308). This is especially so in view of the failure of the appellant second husband to avail himself of the evidentiary hearing offered to him by the Appellate Division within the time allotted for such a hearing.