Jones v. Jones, 24 N.Y.S. 1031

24 N.Y.S. 1031 | N.Y. Sup. Ct. | 1893

HARDIN, P. J.

1. So far as the moving papers contain allegations of collusion, fraud, or corruption on the part of the attorney of the plaintiff in conducting the proceedings, they are fully met by contradictions, explanations, and affirmative statements found in the opposing affidavits and papers. The power of this court to annul a judgment or set aside one for fraudulent practices in obtaining the same is undoubted. Smith v. Nelson, 62 N. Y. 288. In Ross v. Wood, 70 N. Y. 8, it was said “that the fraud or accident which will authorize interference with judgments must be unmixed with negligence on the part of the moving party.” And in Mayor, etc., v. Brady, 115 N. Y. 616, 22 N. E. Rep. 237, it is said that it is incumbent upon a moving party to show that he was deprived of his rights “by fraud or accident, unmixed with negligence of himself or his agents.” And in Ward v. Town of Southfield, 102 N. Y. 293, 6 N. E. Rep. 660, it was said that the proof must be clear and satisfactory to induce the court to interfere with the judgment alleged to have been fraudulently obtained; and also that “the solemn judgment of the court should not be lightly interfered with. It is for the interest of the public, as well as of individuals, that there should be an fend of litigation; and where parties have been lawfully brought into a court having jurisdiction of their persons and the subject of litigation, and have had opportunity to prosecute their claims, and to defend their rights, and judgment has been regularly pronounced, while such judgment is not vacated or reversed, it concludes the parties thereto;” and also that, “before a regular judgment can be thus assailed, the proof should be clear and very satisfactory. It is not sufficient merely to raise a suspicion, or to show what is sometimes called ‘constructive fraud,’ but there must be actual fraud.” Applying the rules stated in the cases to which reference has been made to the proofs presented at the special term, we are of the opinion that it was justified in finding that no fraud was practiced upon the plaintiff by her attorney or any other person connected with the trial before the referee, or the motion to confirm the report, or in procuring the judgment which was entered dismissing her complaint, and awarding the affirmative relief given to her by the findings of the referee, and sanctioned by the order of confirmation. We think we ought not to overturn the findings of the special term upon the proofs and papers found in the appeal book before us.

2. The special term had no power, in hearing the motion now brought before us, to reverse or add to or subtract from the decision made by the referee. McLean v. Stewart, 14 Hun, 472; approved in Rockwell v. Carpenter, 25 Hun, 532. To obtain such a result, the party’s remedy was by appeal, .where the decision of the referee could be reviewed.

3. Doubtless, the referee and the counsel ■ engaged in the trial before him. were influenced by the decision and opinion in Finn v. Finn, 62 How. Pr. 83, in which case it was held “that a marriage contract entered into by a person having a husband or wife living, with a third person, is utterly void;” and also that the evidence •of the former marriage was competent in the case, and, it being established, is a defense to the action; and “that under section 501 of the Code of Civil Procedure, in an action for divorce a vinculo, .■a defendant may have affirmative relief.” It is not needful for the purposes of the decision of the appeal now before us to determine whether such relief could have been obtained had objection been taken thereto upon the trial before the referee; nor to determine that, in case he had overruled such objections, and appeal had been taken from his decision, his rulings would have been sustained "in that regard; nor is it needful to determine whether section 1770 of the Code of Civil Procedure is restrictive and prohibitive .as to the “cause of action against the plaintiff, and in favor of the -defendant, which may be set up in an action for divorce.” Mackellar v. Rogers, 109 N. Y. 472, 17 N. E. Rep. 350. Section 1743 •of the Code expressly authorizes an action to be maintained to ■procure a judgment declaring a marriage contract void, and annulling the marriage on the ground “that the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.” That section confers upon the court power to annul a marriage* for the cause stated. In the case before us the referee and the court confirming his report 'had jurisdiction of the person and the subject-matter of the action, and the answer interposed by the defendant contained allegations sufficient to bring the subject-matter within the provisions of section 1743 of the Code. In Hunt v. Hunt, 72 N. Y. 228, it is said:

“Power given by law to a court to adjudge divorces from the ties of matrimony does give jurisdiction of the subject-matter of divorce. Though the ^proceedings before that court, from first to last of the testimony, in an application for divorce, should show that a state of facts does not exist which makes a legal cause for divorce, yet it cannot be said that the court has not jurisdiction of the subject-matter; that it has not power to entertain the proceeding, to hear the proofs and allegations, and to determine upon -their sufficiency and legal effect.”

Prior v. Prior, 15 Civil Proc. R. 436, 2 N. Y. Supp. 523; Cromwell v. Hull, 97 N. Y. 209; Reed v. Reed, 107 N. Y. 548, 14 N. E. Rep. 442. "In the latter case it was said:

“The court in the present instance had jurisdiction of the parties and of the subject-matter of the action, and from the decision made, no appeal was •taken. All the parties, therefore, are bound.”

Rima v. Iron Works, 120 N. Y. 438, 24 N. E. Rep. 940; Blanc v. Blanc, (Sup.) 22 N. Y. Supp. 264.

4. When the referee’s report, and the order approving the same, .and directing judgment in accordance therewith, (inasmuch as the reference was to hear and determine,) were filed with the clerk of Madison county, he was authorized to enter a judgment without the same being signed by the judge who had directed the same. Code Civil Proc. § 1204. Plaintiff, having had notice of the judgment 14 months before the notice of motion, is chargeable with loches and neglect, and the special term was warranted in taking into consideration such loches and neglect in disposing of the motion made by her to set aside the judgment. Mattern v. Sage, (Com. Pl. N. Y.) 3 N. Y. Supp. 120. The foregoing views lead to an approval of the decision of the learned judge at the special term. •Order affirmed, with $10 costs and disbursements. All concur.