108 N.Y.S. 964 | N.Y. App. Div. | 1908
Lead Opinion
Plaintiff’s application was to set aside a judgment for ■ divorce, procured, as she claims, by fraud and duress, on' the part of her husband. The affidavit shows that while they were living together in apparent harmony he came to. her and told her that he wanted her to get a divorce, and that he would furnish the evidence upon which it could be obtained; that if she refused to get a divorce he would abandon her and her child and.go West. ■ She did not wish to get a divorce and told him so. But upon his insistence she finally consented, and consented to take for herself and child the sum of $2¿000, and release all claims for alimony and support. She and her husband lived together as wife and husband until they went to a lawyer’s office and signed an agreement for the allowance of $2,000 in lieu of alimony, and at that time the summons was served upon the defendant'. The husband furnished to the attorney for the plaintiff the evidence upon which a divorce was afterwards obtained. In the decree of divorce it was provided that the defendant should pay- $10 a month for the support of the child. After the decree was finally obtained, the $2,000 provided for in the agreement, was delivered to the plaintiff. The plaintiff alleges that she agreed to take $2,000 upon his insistence that he was poor and could afford to pay no more, but she now alleges on information arid belief that he hac property to the value of $30,000. Within seven days after the decree of divorce was signed he went into the State of Vermont and married again. She asks that the decree of divorce be set aside as having been obtained by fraud and coercion.
. The respondent first contends that the order is not appealable because it is not a final order; that by the leave to renew therein given the plaintiff has further remedy before the Special Term, and until that remedy is exhausted she cannot appeal to this eourt. In my judgment the respondent’s contention in this matter is sustained by' authority. (Robbins v. Ferris, 5 Hun, 286; Wells, Fargo & Co. v. W., C. & P. C. R. R. Co., 12 App. Div. 47, 49.) This rule has, I think, been recognized in this court in Matter of Hudson Water Works (111 App. Div. 860, 862.) The leave to renew the motion given to her by the order appealed from was a favor-to her, presumptively granted at her request. If she may also appeal while that remains in the order, she is nowhere required to elect which remedy she will pursue, and evidently has both remedies. It seems to me to have - been reasonably held that while that permission remains in the order she cannot appeal. If she would appeal, she should have that provision expunged from the order, or at least should have presented with her notice of appeal a stipulation waiving the benefit thereof. In this matter, however, I am-overruled . by my associates, and am thus brought to the consideration of the merits of the motion.
This order was denied upon the affidavits presented by the plaintiff. Ho affidavits were read or called for on behalf of the defendant. The sole question to determine, then, is whether upon the affidavits of the plaintiff a prima facie case is presented for the annulment of this decree.
That such prima facie case was thus presented by the affidavits of the plaintiff seems to me to admit of little doubt. The right of a party to the marriage contract to have, that contract dissolved by reason of the infidelity of the other party thereto is given as a favor to the injured party. It was never intended to be used as a means whereby the wife should be forced to dissolve the contract. The court, at the request of a wife so desiring, grants a divorce.by reason of the infidelity of the husband, but that request must be voluntary. . If the wife’s request be coerced, if the judgment be
In' the case at bar' the plaintiff’s affidavit contained allegations .clearly showing a coercion upon her husband’s part, and that the judgment of divorce- was the result of that coercion. These affidavits appear upon the record unanswered in any way. It may be. that they were insufficient to satisfy the mind of the Special Term justice, but in a case of this nature, where the public has an interest and is a party thereto, the motion should not be denied fti.r insufficient proof. If. necessary, a reference should be ordered, that the facts may be shown more fully. In fact,-it would seem that upon, a mere suggestion of coercion the court would order a reference to ascertain the facts, that it may be satisfied that no imposition has been practiced upon the court and that the remedy which is given to a wife, as her shield has not been used as a sword to slay - her.
The fact that the defendant is again married is entirely without relevancy. The marriage was within seven days of the entry of ' the judgment of divorce, which judgment • absolutely forbade the defendant’s remarriage. - It is not probable, even if it were material, ' that the woman whom he afterwards married was innocent of all knowledge of the provisions of the decree and the circumstances under which it was obtained.
In this case, however, this court should not -.grant this order, although the plaintiff seems to have made ajprima facie case thore- ■ for. The defendant should be heard.
Cochrane, J., concurred; Chester, J., concurred in memorandum ; Kellogg, J., concurred in memorandum in which Sewell, J., concurred.
Concurrence Opinion
If the provision in the order granting leave to renew the motion upon further or additional evidence was inserted therein by request of the plaintiff, and for her benefit, I would agree that she should not at the same time have the benefit of that provision and also of the right to appeal, but there is nothing in this record showing that the provision was inserted at her request or for her benefit. She is here insisting, as she did at the Special Term, that the papers used upon the motion were sufficient to require the granting of the relief she' asked. The court has, however, denied her that relief “ for want of sufficient evidence.”- As it does not appear that she asked and - obtained permission to renew, we should not, under the circumstances presented here, indulge in the presumption that she procured the insertion of the provision in the order, and she- ought not to -be deprived of the right to have the sufficiency of her papers determined upon appeal, after the denial of the relief she sought at Special Term.
In other respects I agree with the opinion of the learned presiding justice.
I concur in the result. The order in question denies the plaintiff’s motion “ for want of sufficient evidence, without prejudice to a renewal thereof upon further or- additional evidence.” We are holding in the prevailing opinion that this order is erroneous, and that upon the facts shown, in the moving papers the defendant is entitled to relief. We may fairly assume that she disclosed her whole case upon the motion, and that it is not probable that she has further or additional evidence'to produce. The order appealed from is a final determination that upon the facts shown appellant can have no relief. The order recites the defendant as. opposing the motion. We, therefore, assume that the- order and the whole of
In none óf the cases cited was the question now being considered ' decided,, and I-do not think those cases authority for the proposition
z Sewell, J., concurred.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special-Term for rehearing and' decision.