In re Neiman

New York Supreme Court

In re Neiman

176 Misc. 552, 28 N.Y.S.2d 109, 1941 N.Y. Misc. LEXIS 1847

CourtNew York Supreme Court

DecidedApril 23, 1941

StatusPublished

Cited by3 cases

This text of 176 Misc. 552 (In re Neiman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Neiman, 176 Misc. 552, 28 N.Y.S.2d 109, 1941 N.Y. Misc. LEXIS 1847 (N.Y. Super. Ct. 1941).

Pincite

Opinion

Valente, J.

This is an application by the se'cond husband to set aside and vacate a decree procured by his present wife against her former husband in June, 1933, in a so-called Enoch Arden proceeding. (Dom. Rel. Law, § 7-a.) This is a direct attack upon a decree and is based upon the charge that the wife procured the same through fraud and had made false statements as to material facts in that proceeding concerning the whereabouts of the former [553]*553husband. While the decree may not be challenged collaterally (Arcuri v. Arcuri, 265 N. Y. 358), it would seem that it may be attacked in the same proceeding. Nevertheless, this application cannot be granted. The papers presented disclose that the first husband is now living, and there is no evidence before the court that he has received notice of this motion. Unquestionably, some legally approved form of notice should be given to him. Not only is he a party within contemplation of the law but it may well be that he changed his status on the strength of the decree and to now vacate it without giving him an opportunity to appear and be heard would result in a grave injustice not only to him but to others who now might stand in close relationship to him.

For these reasons the application is denied, with leave to renew on proper papers and submission of satisfactory proof to the court that the first husband has received proper notice of the motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Valente, J.

This is an application by the se'cond husband to set aside and vacate a decree procured by his present wife against her former husband in June, 1933, in a so-called Enoch Arden proceeding. (Dom. Rel. Law, § 7-a.) This is a direct attack upon a decree and is based upon the charge that the wife procured the same through fraud and had made false statements as to material facts in that proceeding concerning the whereabouts of the former [553]*553husband. While the decree may not be challenged collaterally (Arcuri v. Arcuri, 265 N. Y. 358), it would seem that it may be attacked in the same proceeding. Nevertheless, this application cannot be granted. The papers presented disclose that the first husband is now living, and there is no evidence before the court that he has received notice of this motion. Unquestionably, some legally approved form of notice should be given to him. Not only is he a party within contemplation of the law but it may well be that he changed his status on the strength of the decree and to now vacate it without giving him an opportunity to appear and be heard would result in a grave injustice not only to him but to others who now might stand in close relationship to him.

For these reasons the application is denied, with leave to renew on proper papers and submission of satisfactory proof to the court that the first husband has received proper notice of the motion.

Cite This Page — Counsel Stack

Bluebook (online)

176 Misc. 552, 28 N.Y.S.2d 109, 1941 N.Y. Misc. LEXIS 1847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-neiman-nysupct-1941.

Opinion

Related

Cite This Page — Counsel Stack