Klotz v. Klotz

Appellate Division of the Supreme Court of New York

Klotz v. Klotz

17 A.D.2d 800, 232 N.Y.S.2d 753, 1962 N.Y. App. Div. LEXIS 7532

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

DecidedOctober 23, 1962

StatusPublished

Cited by2 cases

This text of 17 A.D.2d 800 (Klotz v. Klotz) 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

Klotz v. Klotz, 17 A.D.2d 800, 232 N.Y.S.2d 753, 1962 N.Y. App. Div. LEXIS 7532 (N.Y. Ct. App. 1962).

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Opinion

Orders, entered May 3, 1962, denying motion to dismiss complaint as insufficient and denying defendant’s motion to vacate an order of arrest, unanimously modified, on the law, to the extent of dismissing the first cause of action in the complaint, and otherwise affirmed, without costs. Had the husband misrepresented the value of his own assets, the first cause of action would have been insufficient (Weintraub v. Weintraub, 302 N. Y. 104). That he misrepresented the value of certain of his wife’s assets creates, in our opinion, no legally significant difference. The agreement provided for support and maintenance and was substantially more than a property settlement. It included a provision looking to divorce, and the Nevada court which granted the divorce less than two months after the date of the agreement ratified and approved that document, made it part of the divorce decree, and ordered the parties to comply with its terms and provisions. To sustain the cause of action would not only substitute judicial [801]*801decision for the agreement of the parties (Johnson v. Johnson, 206 N. Y. 561) but impair the adjudication which the wife sought and obtained in a sister State (Rehill v. Rehill, 306 N. Y. 126,135; Schacht v. Schacht, 295 N. Y. 439; Calderon v. Calderon, 275 App. Div. 251; Hoyt v. Hoyt, 265 App. Div. 223). Even if the action had been brought on the theory discussed in Burbrooke Mfg. Co. v. St. George Textile Corp. (283 App. Div. 640), no inference could be drawn from the allegations which would possibly warrant the invocation of that theory (cf. Ross v. Preston, 292 N. Y. 433, 437). Nor, as pointed out in Hoyt v. Hoyt (supra, p. 224), is the reasoning in Schuylkill Fuel Corp. v. Nieberg Realty Corp. (250 N. Y. 304) of avail. Concur — Botein, P. J., Breitel, Valente, Stevens and Steuer, JJ.

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Orders, entered May 3, 1962, denying motion to dismiss complaint as insufficient and denying defendant’s motion to vacate an order of arrest, unanimously modified, on the law, to the extent of dismissing the first cause of action in the complaint, and otherwise affirmed, without costs. Had the husband misrepresented the value of his own assets, the first cause of action would have been insufficient (Weintraub v. Weintraub, 302 N. Y. 104). That he misrepresented the value of certain of his wife’s assets creates, in our opinion, no legally significant difference. The agreement provided for support and maintenance and was substantially more than a property settlement. It included a provision looking to divorce, and the Nevada court which granted the divorce less than two months after the date of the agreement ratified and approved that document, made it part of the divorce decree, and ordered the parties to comply with its terms and provisions. To sustain the cause of action would not only substitute judicial [801]*801decision for the agreement of the parties (Johnson v. Johnson, 206 N. Y. 561) but impair the adjudication which the wife sought and obtained in a sister State (Rehill v. Rehill, 306 N. Y. 126,135; Schacht v. Schacht, 295 N. Y. 439; Calderon v. Calderon, 275 App. Div. 251; Hoyt v. Hoyt, 265 App. Div. 223). Even if the action had been brought on the theory discussed in Burbrooke Mfg. Co. v. St. George Textile Corp. (283 App. Div. 640), no inference could be drawn from the allegations which would possibly warrant the invocation of that theory (cf. Ross v. Preston, 292 N. Y. 433, 437). Nor, as pointed out in Hoyt v. Hoyt (supra, p. 224), is the reasoning in Schuylkill Fuel Corp. v. Nieberg Realty Corp. (250 N. Y. 304) of avail. Concur — Botein, P. J., Breitel, Valente, Stevens and Steuer, JJ.

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Bluebook (online)

17 A.D.2d 800, 232 N.Y.S.2d 753, 1962 N.Y. App. Div. LEXIS 7532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klotz-v-klotz-nyappdiv-1962.

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