Barcia v. Barcia

283 A.D. 726, 127 N.Y.S.2d 443, 1954 N.Y. App. Div. LEXIS 5082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1954
• Status: Published

Opinion

Appeal by defendant in an annulment action from an order denying his motion (1) for permission to withdraw that portion of a stipulation between the parties wherein he withdrew his answer; (2) for leave to interpose an answer, and (3) for a direction placing the action on the contested matrimonial calendar for trial on a day certain. The stipulation, in addition to providing for the withdrawal of the answer, provided for the payment of counsel fees by defendant to plaintiff, the delivery of certain articles of personal property to plaintiff, and the waiver by plaintiff of her right to alimony, both future and in arrears. Order reversed, without costs, and motion granted, without costs, to the extent of permitting defendant to withdraw the portion of the stipulation wherein he withdrew his answer, and permitting him to interpose an answer, on condition that within five days from the entry of the order hereon defendant consent to the withdrawal from the stipulation of paragraph three thereof relating to the waiver by plaintiff of her right to alimony; otherwise, order affirmed, with $10 costs and disbursements. In our opinion, defendant should be allowed to defend this matrimonial action on the merits (cf. Vmderhorst v. Vanderliorst, 282 App. Div. 312; Biddle v. Biddle, 282 App. Div. 948, and McConnell V. McConnell, 282 App. Div. 960); and the court has power to relieve defendant from his stipulation (Barry v. Mutual Life Ins. Co. of N. Y., 53 N. Y. 536, 540; cf. Foote v. Adams, 232 App. Div. 60, and Matter of Lamberti, 181 Mise. 706, affd. 267 App. Div. 866). However, defendant should not be afforded such relief unless plaintiff can be restored to substantially her former position. {Barry v. Mutual Life Ins. Co. of N. Y., supra.) Nolan, P. J., Adel, Wenzel, Beldoek and Murphy, JJ., concur.