111 N.Y.S. 1078 | N.Y. Sup. Ct. | 1908
This action is brought to set aside a decree of divorce which is alleged to have been procured by fraud and collusion. The decree of divorce was entered in favor of the defendant against the plaintiff on the 21st day of March, 1903. The defendant in that action, who is the plaintiff in this, was properly served with process but did not appear; and the decree was entered after the proof on behalf of the plaintiff had been presented. The plaintiff alleges that the defendant agreed to provide for her and to pay her $1,000 if she would allow him to obtain a divorce from her; that she consented to allow the defendant to get a divorce from her without interposing any defense; that such divorce was granted, and that this defendant failed to pay her the $1,000 as agreed.
I am not satisfied from the evidence presented that the divorce was obtained as a result of such a collusive agreement as the plaintiff alleges. Assuming, however, that the decree of divorce was obtained as a result of collusion, that
The decree of divorce is attacked, also, on the ground that the court was misled by perjured testimony. The son of the parties to this action, who at the time of the action for divorce was fourteen years of age, testified upon this trial that the evidence which he gave in the action for divorce was false. The testimony of this witness is unworthy of belief. It is impossible to determine whether the testimony which he gave in the divorce action is true, or whether the testimony which he gave in this action is true. The fact, however, that perjured testimony was offered to secure the decree attacked is not, of itself, ground for setting it aside. United States v. Throckmorton, 98 U. S. 68; Mayor v. Brady, 115 N. Y. 599, 615.
The plaintiff in this action has delayed bringing this action for five years. She attempts to excuse her laches upon the ground of her poverty. I am satisfied that the excuse which she now offers is not genuine. The laches of which she has been guilty is alone sufficient to prevent her recovery in this action. 4 Cyc. 720; Singer v. Singer, 41 Barb. 139.
Since the decree of divorce has been entered, the defendant has remarried and has issue by that marriage. While this fact does not of itself preclude a court from setting aside a
It is clear, upon both the facts and the law, that judgment should be rendered in this action in favor of the defendant dismissing the complaint upon the merits.
Submit findings and proposed form of decision.
Ordered accordingly.