Stewart v. Stewart

Appellate Division of the Supreme Court of New York

Stewart v. Stewart

28 A.D.2d 1106, 284 N.Y.S.2d 409, 1967 N.Y. App. Div. LEXIS 3104

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

DecidedNovember 2, 1967

StatusPublished

This text of 28 A.D.2d 1106 (Stewart v. Stewart) 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

Stewart v. Stewart, 28 A.D.2d 1106, 284 N.Y.S.2d 409, 1967 N.Y. App. Div. LEXIS 3104 (N.Y. Ct. App. 1967).

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Opinion

Concur — Stevens, J. P., Eager and Capozzoli, JJ.; Tilzer and McNally, JJ., concur in the result in the following memorandum by McNally, J.: I concur in the result on the ground that there is no proof of the existence of a valid Georgia judgment or decree for arrears. The writ of Fieri Facias was based on a computation of sums due, verified by plaintiff’s affidavit before the clerk of the issuing court, without notice to appellant. Thereby, appellant was deprived of the opportunity to raise any defenses otherwise open to him against the so-called judgment for accrued alimony. There is a want of judicial due process. Hence, the judgment for the arrears is not entitled to full faith and credit. (Griffin v. Griffin, 327 U. S. 220, 228.) The ambiguity, if any, resulting from the diagonal line across the face of the document referred to in the majority memorandum, in my opinion, should be resolved in the court of origin.

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Concur — Stevens, J. P., Eager and Capozzoli, JJ.; Tilzer and McNally, JJ., concur in the result in the following memorandum by McNally, J.: I concur in the result on the ground that there is no proof of the existence of a valid Georgia judgment or decree for arrears. The writ of Fieri Facias was based on a computation of sums due, verified by plaintiff’s affidavit before the clerk of the issuing court, without notice to appellant. Thereby, appellant was deprived of the opportunity to raise any defenses otherwise open to him against the so-called judgment for accrued alimony. There is a want of judicial due process. Hence, the judgment for the arrears is not entitled to full faith and credit. (Griffin v. Griffin, 327 U. S. 220, 228.) The ambiguity, if any, resulting from the diagonal line across the face of the document referred to in the majority memorandum, in my opinion, should be resolved in the court of origin.

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Bluebook (online)

28 A.D.2d 1106, 284 N.Y.S.2d 409, 1967 N.Y. App. Div. LEXIS 3104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-stewart-nyappdiv-1967.

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