Merritt v. Lockwood

10 N.Y. St. Rep. 875

• Court: New York Supreme Court
• Decided: July 1, 1887
• Status: Published

Opinion

Pratt, J.

—The plaintiff brought her action for absolute divorce and obtained a decree in accordance with the prayer of her complaint.

During the twelve years succeeding she makes no charge of any fraud or irregularity in the proceedings. After the death of the defendant in the ■divorce suit, she now, for the purpose of sharing in his estate, brings this notion to set aside the decree for fraud.

We find no evidence to sustain the charge.

The features of the case chiefly relied upon to establish the fraud, seem to the court to be conclusive against it. It is shown that before the divorce was granted the husband and wife lived separately, the wife being allowed fifty ■dollars a month for her support. By the decree in divorce she was allowed nothing. She now claims that the failure to apply for alimony stamps the proceedings as fraudulent. On the contrary, the fact that she lost her alimony would be sure to attract her attention and provoke inquiry on her part. It is not conceivable that she gave up her alimony without knowing the reason why. Had she objected at once and applied to open the decree, the application would have been natural; but the delay of twelve years, until the defendant can no longer be heard, affords abundant ground to deny the application. Judgment affirmed.

' Barnard, P. J., and Dykman, J. concur.