Weinberg v. Weinberg

185 Misc. 350, 58 N.Y.S.2d 271

• Court: New York Supreme Court
• Decided: July 30, 1945
• Status: Published

Opinion

Coyne, J.

This is a motion by plaintiff for an order modifying a final decree of divorce previously made and entered herein. A preliminary objection is made by defendant to the effect that plaintiff has not followed the procedure prescribed by statute (Civ. Prac. Act, §§ 1155, 1170). The objection appears to be well taken. Both sections give the court the power to amend the judgment by order “ after due notice to the other, to be given in such manner as the court shall prescribe ”. A departure from the procedure outlined is a fatal defect, and if timely objection is raised, must be recognized. (Warmbrand v. Warmbrand, 178 Misc. 788.) Such an application must be made by order to show cause, wherein the court may direct the manner of service of the notice. The proceeding may not be initiated by notice of motion (see Coalson v. Coalson, N. Y. L. J., Jan. 20, 1944, p. 257, col. 5; Rappaport v. Rappaport, N. Y. L. J., Dec. 3, 1943, p. 1598, col. 5; Kuhlman v. Kuhlman, N. Y. L. J., Aug. 4, 1942, p. 272, col. 4; Schenker v. Schenker, N. Y. L. J., April 5, 1945, p. 1294, col. 7). Motion denied, no costs, and without prejudice to renewal by order to show cause.