Levy v. Levy

284 A.D. 983, 135 N.Y.S.2d 95, 1954 N.Y. App. Div. LEXIS 4305

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1954
• Status: Published

Opinion

Action No. 1 was instituted for separation in Kings County. Plaintiff in that action was granted $50 a week temporary alimony. Before a note of issue was filed, the parties agreed to resume their marital relationship and entered into a stipulation discontinuing the action. The stipulation was prepared by the wife’s attorney, and was signed by both parties. About six months later the husband instituted Action No. 2 in Orange County, the domicile and residence of both parties, for annulment of their marriage on the ground of fraud or, in the alternative, for separation. The wife thereupon moved to vacate the stipulation of discontinuance in Action No. 1 and to consolidate Action No. 2 with Action No. 1 and transfer it to Kings County, on the grounds: (1) that the stipulation was not signed by the attorneys for the parties, as required by rule 301 of the Rules of Civil Practice; and (2) that her husband induced her to enter into the stipulation by fraud and misrepresentation. The court granted the motion, and the husband appeals. Order reversed, without costs, and motion denied. It was clearly intended to terminate Action No. 1 by the stipulation of discontinuance. Under the circumstances herein, the failure of the attorneys for the parties to sign the stipulation was a mere irregularity which does not render the stipulation invalid. (Manufacturers Mut. Fire Ins. Co. v. Hopson, 176 Mise. 220, affd. 262 App. Div. 731.) The court should not have vacated this stipulation summarily on motion and on conflicting affidavits. (Yonkers Fur Dressing Co. V. Boyal Ins. Go., 247 N. Y. 435.) Nolan, P. J., Wenzel, Schmidt, Beldoek and Murphy, JJ., concur.