Cernak v. Cernak

Appellate Division of the Supreme Court of New York

Cernak v. Cernak

12 A.D.2d 980, 211 N.Y.S.2d 847, 1961 N.Y. App. Div. LEXIS 12433

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 27, 1961

StatusPublished

Cited by1 cases

This text of 12 A.D.2d 980 (Cernak v. Cernak) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cernak v. Cernak, 12 A.D.2d 980, 211 N.Y.S.2d 847, 1961 N.Y. App. Div. LEXIS 12433 (N.Y. Ct. App. 1961).

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Opinion

In an action (1) to set aside a separation agreement and (2) for a judicial separation, the plaintiff wife appeals from an order of the Supreme Court, Nassau County, dated October 24, 1960, granting defendant’s motion, made pursuant to subdivision 4 of section 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that on its face it does not state facts sufficient to constitute a cause of action. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the complaint sufficiently pleads a cause of action to set aside the separation agreement (cf. Pomerance v. Pomerance, 301 N. Y. 254, 256; Galusha v. Galusha, 138 N. Y. 272, 284). Plaintiff has pleaded facts which may be held sufficient to excuse her failure to tender to defendant the balance of the consideration for the agreement remaining in her hands, as a condition precedent to the bringing of her action. If it shall appear on trial that a return of such consideration is required for an equitable disposition of the issues, an appropriate judgment may be entered after the facts have been determined. Defendant’s time to serve his answer to the complaint is extended until 20 days after entry of the order hereon, or until such other date as may be mutually fixed by the parties. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.

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In an action (1) to set aside a separation agreement and (2) for a judicial separation, the plaintiff wife appeals from an order of the Supreme Court, Nassau County, dated October 24, 1960, granting defendant’s motion, made pursuant to subdivision 4 of section 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that on its face it does not state facts sufficient to constitute a cause of action. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the complaint sufficiently pleads a cause of action to set aside the separation agreement (cf. Pomerance v. Pomerance, 301 N. Y. 254, 256; Galusha v. Galusha, 138 N. Y. 272, 284). Plaintiff has pleaded facts which may be held sufficient to excuse her failure to tender to defendant the balance of the consideration for the agreement remaining in her hands, as a condition precedent to the bringing of her action. If it shall appear on trial that a return of such consideration is required for an equitable disposition of the issues, an appropriate judgment may be entered after the facts have been determined. Defendant’s time to serve his answer to the complaint is extended until 20 days after entry of the order hereon, or until such other date as may be mutually fixed by the parties. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.

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Bluebook (online)

12 A.D.2d 980, 211 N.Y.S.2d 847, 1961 N.Y. App. Div. LEXIS 12433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cernak-v-cernak-nyappdiv-1961.

Opinion

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