Frischman v. Frischman

275 A.D.2d 860

Opinion

That order was superseded by the order granting reargument and adhering to the original decision. If defendant fraudulently induced the plaintiff to resume marital relations and if, in fact, he did not intend in good faith to be reconciled, or continued his intimacy with the corespondent, he cannot avoid compliance with the order directing payment of alimony and counsel fee. (Johnson v. J ohnson, 14 Wend. 637; Betz v. Betz, 19 Abb. Prac. 90; Deisler v. Deisler, 59 App. Div. 207, 214; Beale v. Avery, 277 Mass. 332.) In view of the contradiction in the affidavits submitted on this motion, Special Term could not properly dispose of it without oral proof. In the cases relied upon by Special Term there was no dispute that a bona fide reconciliation had taken place. Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.