| N.Y. App. Div. | May 23, 1955
Application, pursuant to section 1170 of the Civil Practice Act, for an order to vacate and annul the provision in the final judgment of divorce entered in 1950 in this uncontested action which requires the appellant to pay to the respondent $50 weekly for her support, and to direct a trial in the action on the issue of alimony; or, in the alternative, to modify said decree by reducing the alimony to $10 a week. The appeal is from an order denying the application without a hearing. Order reversed, without costs, and matter remitted to Special Term for a hearing on the question of a modification of the judgment with respect to alimony. The application is based on the alleged grounds that the provision for alimony was obtained by fraud and perjured testimony, that plaintiff fraudulently induced defendant not to defend the action on the issue of alimony, and that there has been a substantial change of circumstances in both parties. The opposing affidavit consists of denials and counter-accusations of perjury. Under all the circumstances a hearing is required to resolve the conflicting claims of the parties. (Mangiamele v. Mangiamele, 277 App. Div. 786.) Nolan, P. J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur.