Monacchio v. Monacchio

247 A.D. 810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1936
• Status: Published

Opinion

Order denying plaintiff’s motion for an order directing that a final judgment of divorce signed on October 21, 1931, be filed nunc pro tunc as of that date, reversed on the law, without costs, and the motion granted, without costs. The interlocutory judgment was entered on June 26, 1931. The final decree was signed on October 21, 1931, but through the carelessness of plaintiff’s attorneys’ clerk the filing fee was not paid and the final decree was not entered. The Special Term denied the motion on the authority of Merrick v. Merrick (266 N. Y. 120), where it was held that the court was without power to make an order nunc pro tunc “ which will supply a jurisdictional defect by requiring something to be done which has not been done.” That is not the situation here. Here the court, in fact, determined that plaintiff was entitled to a final decree and signed it. The failure to enter the final decree did not make it void but was an irregularity which the court had the power to cure. (Merrick v. Merrick, supra.) Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.