200 Misc. 10 | N.Y. Sup. Ct. | 1951
This is a motion to amend a final judgment of separation.
The plaintiff instituted an action for separation, alleging her husband had abandoned her. The defendant, who appeared by an attorney, defended on the ground that the plaintiff had in fact abandoned him. In June, 1950, after trial, this court granted plaintiff a judgment of separation and awarded her permanent alimony. Thereafter, in September, 1950, defendant
In support of the motion, plaintiff relies upon the recent decision of the Court of Appeals in Garvin v. Garvin (302 N. Y. 96). In that case, plaintiff sued her husband for separation and he appeared generally. While the action was still pending, the defendant went to the Virgin Islands, a territory of the United States, and there commenced an action for divorce. Instead of appearing in the action, she applied for an order to restrain the defendant from prosecuting the action. Appearing specially, the attorney for defendant in the separation action contended that the motion was not incidental to any of the issues in the separation action, and that defendant’s general appearance in the separation action did not give the court jurisdiction of the motion. It was held that, during the pendency of the separation action (Civ. Prac. Act, § 878), the court had jurisdiction to entertain the motion and to issue a restraining order.
The Garvin decision (supra) is distinguishable. In that case, defendant appeared generally in the action and the action was still pending. Here, the separation action has proceeded to final judgment, and the question is whether, under the circumstances, the final judgment may be amended by including therein a restraining provision.
As a general rule, a court is without authority to amend or modify a final judgment in any substantial respect; nor, perhaps, in any respect other than to make it conform to the decision or verdict (Herpe v. Herpe, 225 N. Y. 323, 325, 327; Carmody’s Manual of New York Civil Practice, § 490). The only exception to the rule, so far as is here pertinent, is that, as an incident to the general jurisdiction of the court in matrimonial actions, it has authority, inherent and statutory, to amend or modify a final judgment or decree to the extent necessary to provide
The motion is, therefore, denied without prejudice to a plenary action.