Cary v. Cary

144 A.D. 846, 129 N.Y.S. 444, 1911 N.Y. App. Div. LEXIS 4255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1911
• Status: Published

Opinion

Smith, P. J.:

The interlocutory judgment herein was entered upon July ■28, 1909. The final judgment was made November 6, 1909,. and entered November 28,-1909. • In August of the same year, and before the final judgment of divorce had been made and entered, the plaintiff took the defendant to his home and there lived and cohabited with her as husband and wife, and continued that relation after the final judgment was entered, and until March of the succeeding year. ' By section 1758 of the Code of Civil Procedure a divorce should be denied, although the adultery be proven, “Where the offense charged has been forgiven by the plaintiff,” which fact may be proven by the voluntary cohabitation of the parties with the knowledge of the fact. By section 1774 a party is entitled, as of course, to a final judgment three months after the entry of the interlocutory judgment, “unless for sufficient cause the court in the meantime shall have otherwise ordered.” If the- fact of the voluntary cohabitation had been known to the court at the time of. the entry of the final judgment, the final judgment would undoubtedly have been denied. The fact that it was concealed from the court at that time gives full warrant to the court, upon the discovery of this fact after the entry of final judgment, to vacate and set aside the same. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

All concurred. .

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.