Granchelli v. Granchelli

31 Misc. 2d 838, 221 N.Y.S.2d 179, 1961 N.Y. Misc. LEXIS 2043

• Court: New York Supreme Court
• Decided: November 21, 1961
• Status: Published

Opinion

G. Robert Wither, J.

Plaintiff has moved for an order revoking a judgment of separation of the parties hereto granted by this court by judgment entered in Monroe County Clerk’s office on June 4, 1954. It appears that on or about October 1, 1955 the parties reconciled and that they have been living together as man and wife since that time.

Plaintiff contends that by reason of such reconciliation and resumption of marital life the judgment of separation has become void, and that she is entitled on this motion to have it revoked and declared null and void. Defendant resists the motion and says that this is merely a preliminary step in plaintiff’s plan to sue for a new judgment of separation.

Reconciliation and resumption of the marital relations with intent to abandon a separation agreement will vitiate and annul such agreement. (Zimtbaum v. Zimtbaum, 246 App. Div. 778, affd. 272 N. Y. 416; Peer v. Peer, 20 Misc 2d 878.)

The law is different, however, with respect to a judgment of separation. Section 1165 of the Civil Practice Act controls in such case, and only upon a “ joint application of the parties, accompanied with satisfactory evidence of their reconciliation ” may a judgment of separation be revoked. (Lebensfeld v. Lebensfeld, 13 A D 2d 547, affg. 207 N. Y. S. 2d 330; Lowe v. Lowe, 279 App. Div. 852; Schirmer v. Schirmer, 260 App. Div. 1057; Schatzberg v. Schatzberg, 229 App. Div. 214; Beeber v. Beeber, 225 App. Div. 757; Gewirtz v. Gewirtz, 189 App. Div. 483.) The motion to revoke the judgment of separation is therefore denied.