Jackman v. Jackman

258 A.D. 838, 15 N.Y.S.2d 618, 1939 N.Y. App. Div. LEXIS 7177

Opinion

Appeal by defendant Winans from an order of the Supreme Court, entered in Otsego county July 19,1939, permitting the re-entry of the interlocutory decree of divorce obtained by plaintiff respondent against said defendant nunc pro tunc as of the 6th day of March, 1937. The interlocutory decree was granted March 6, 1937, and was entered in Otsego county March 12, 1937. Said interlocutory decree provided, among other things, that it would become the final judgment three months after the entry thereof. It accordingly became final on the 12th' day of June, 1937. On the 7th day of June, 1937, plaintiff respondent and appellant Winans were married, apparently under a mistaken assumption that the divorce became final three months after the granting of the interlocutory decree. They lived together until April, 1939, when plaintiff respondent instituted an action for separation. The order appealed from was made during the separation action, which is still pending. The court held that there was no suggestion that the plaintiff acted in bad faith and ordered that the interlocutory decree be considered re-entered in the clerk’s office as of March 6, 1937. Clearly, the equities were in favor of the plaintiff and the court exercised sound discretion in granting the order. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Crapser, Bliss, Sehenck and Poster, JJ.