Rice v. Rice

279 A.D. 838, 109 N.Y.S.2d 741

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1952
• Status: Published

Opinion

Memorandum: The order of December 4, 1950, vacating the judgment of separation should be reversed without costs and the motion to vacate denied, without costs. The motion to vacate was made some five and one-half years after the judgment of separation was entered during which time the parties were governed by its terms. Both parties were present and represented by attorneys at the trial. The court had jurisdiction of the parties and of the subject matter. The evidence presented was sufficient to support the judgment. Defendant, in view of subsequent developments, now wishes to present a defense known to him and his attorney at the time but withheld. No situation is disclosed wherein the court is called upon to invoke its inherent power in the interest of justice (see Gysin v. Gysin, 263 N. Y. 509, and Merritt v. Merritt, 259 App. Div. 242). The order of October 7, 1948, modifying the judgment of separation in respect to its provisions for custody and support, except for that part of the order which vacates an order made by an Official Referee, should be affirmed^ without costs. The record before us contains no motion to vacate the order of the Official Referee or any papers relating thereto. The order itself does not appear in the record. We have no record upon which to review that part of the Special Term’s order which vacates the order of the Official Referee, and therefore dismiss the appeal as to that part of the order appealed from. The order of March 28, 1951, insofar as it denies the relief asked for in the show cause order is proper. The matters involved in the second and third ordering paragraphs are provided for in the judgment of separation and the order modifying that judgment. The defendant has not appealed from either the judgment of separation or the order of modification and there was no cross motion for the relief granted in the second and third ordering paragraphs of the order of March 23, 1951. That order should, therefore, be modified by striking therefrom the second and third ordering paragraphs, and as so modified affirmed, without costs. All concur. (Appeals from three orders, [1] modifying a decree of separation; [2] granting motion to reopen the judgment of separation; and [3] striking out a provision of a temporary order and permitting defendant to enjoy the property as a tenant by the entirety.) Present — Taylor, P. J., McCum, Vaughan, Piper and Wheeler, JJ.