33 How. Pr. 490 | The Superior Court of New York City | 1866
It is provided by statute that in actions for divorce on the ground of adultery, the court may, if the offense charged is denied, award a new or further trial of
I am satisfied that the plaintiff cannot claim the benefit of the statute to which I have referred. A defeated party, whose guilt of the offense has been established by the verdict of a jury, can alone avail himself of its provisions.
The Code provides (§ 174), that any time within one year after notice thereof, the court may relieve a party from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect. But such provision limits the power to one year after notice, and is conclusive on this motion, as it is not claimed that the defendant had not notice of the judgment she seeks to open at the time it was entered.
The only reason assigned for a new trial, is the evidence of marriage furnished by the partition' suit; which, it is claimed, should conclude the1 defendant. Admitting that such effect would necessarily have to be given to the evidence suggested, there is still the other fact, which the plaintiff does not propose to controvert, namely, that at the time of her marriage to the defendant, she was a married woman. Such fact of itself rendered a marriage with the defendant wholly void. (Bishop on Divorce, vol. 1, § 299.)
Under any aspect therefore, even though the court had the power to open the judgment, and this was a case in which such power should be exerted, the plaintiff would be without any substantial relief. Her former marriage stands as a perpetual bar to her claiming to be the wife of .the defendant. More than six years have.elapsed since a solemn judgment of this court was pronounced against the plaintiff. What new relations the parties, or either of them, have formed, does not appear. But the security and quietude which such judgment has afforded, should not be disturbed, except for most clear and conclusive reasons.
I find nothing in the papers before me which furnishes any such reasons.
The motion must be denied.