Baranowitz v. Baranowitz

• Decision Date: 01 January 1958
• Citation: 176 N.Y.S.2d 856,13 Misc.2d 404
• Parties: Rita BARANOWITZ v. Abraham BARANOWITZ.
• Court: New York Supreme Court

Page 856

176 N.Y.S.2d 856

13 Misc.2d 404

Rita BARANOWITZ v.Abraham BARANOWITZ.

Supreme Court, Special Term, Kings County, Part V.

Jan. 1, 1958

Robert R. Kaufman, New York City, for plaintiff.

Joseph A. D'Addario, New York City, for defendant.

WALTER R. HART, Justice.

Defendant husband in May, 1953, brought an action for absolute divorce against plaintiff.The action was undefended and upon the hearing of the inquest before the official referee counsel for the husband was directed to subpoena the wife.Accompanied by her attorney she appeared before the official referee on June 29, 1953, admitted she was served with process and advised the referee that she did not desire to contest the action.On July 21, 1953, an interlocutory judgment of divorce was entered in favor of defendant husband which by its terms became final as of course three months later, viz., October 20, 1953.

The instant action was brought by the wife to vacate the judgment of divorce and for a judgment of separation in her favor, together with alimony and counsel fees.The complaint herein, in so far as it seeks judgment vacating the prior judgment, alleges (1)'that in or about May of 1953 after many acts of cruelty and physical bodily harm when the defendant stated that unless she consented to a divorce he would beat her to a pulp and cause her to suffer a heart attack, this plaintiff consented and said she would sign anything he wanted and do anything he wanted.Subsequently this defendant commenced an action for divorce against the plaintiff.There was no foundation in fact for any of the allegations set forth in that complaint, but plaintiff was in fear of her safety, the safety of the children and in fear of her very life.Consequently, she did nothing to oppose the bringing of the action,' and (2) that subsequent to the commencement of the divorce action the defendant husband returned to live with the plaintiff and was living with her as man and wife at the very time that the divorce proceedings were brought to court, and that he told her that the action had been dropped.

Plaintiff also alleges that she had not committed adultery and that defendant had by cohabitation condoned the 'alleged adultery.'

After issue was joined in the instant action, plaintiff wife moved in the divorce action to vacate her default upon the grounds (1) that the interlocutory judgment of July 21, 1953, never became final because of the reconciliation of the parties in August and that they lived together as husband and wife until September, 1956; (2) that she did not defend the action because plaintiff told her he would inflict serious bodily harm upon her and the children and would cause her to suffer a heart attack.The motion was referred to an official referee to hear and report.After protracted hearings before the referee, he reported that there had been no cohabitation or condonation before the interlocutory judgment became final and recommended that the motion to vacate the default be denied.The report of the official referee was confirmed at Special Term.It is to be observed in passing that the facet of the motion relating to the charge of duress was not developed before the referee or passed upon by him.

Upon the trial of the present action before this court, by consent of the partiesdefendant was permitted to amend his answer so as to plead that the order confirming the referee's report and denying the motion to vacate the default was res judicata of the allegations of the complaint.It was further tacitly agreed that the court first dispose of the issues raised by this affirmative defense.The court thereupon held that the order of confirmation of the referee's report, which denied the motion to vacate the default, was res judicata because the issues of fact raised by the motion papers were substantially identical with those raised by the pleadings in the instant action.Accordingly judgment was directed for defendant.

Plaintiff presently moves to set aside the decision under section 522 of the Civil Practice Act on the ground of error of law.Upon reflection and further study, the court concludes that plaintiff's position is legally correct; and that the order denying the motion to vacate the default is not a bar to the maintenance of the instant action, particularly in so far as it relates to the charge that the defendant prevented plaintiff from defending the divorce action.

A judgment procured by fraud 'extrinsic' to the issues of the action may be attacked by a suit in equity (Freeman's Law of Judgments, 5th Edition, secs. 1231, 1233) which quotes (at page 2569) Justice Miller in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93: 'Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent * * * these * * * are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing.'

'Duress is a species of fraud and if it prevents a party from making effective defense, is ground for relief (in equity)'(Freeman's Law of Judgments, 5th Edition, sec. 1239).The rule is succinctly stated in the Restatement of the Law of Judgments, section 121: '* * * Equitable relief from a default judgment will be granted to a party to the action injured thereby if the judgment was based upon a fraudulent claim or defense which he did not contest because he was * * * (b) prevented by duress from contesting it.'

Thus it would appear that if plaintiff can establish at a trial that she refrained from defending the divorce action because of a well-founded fear of bodily harm induced by defendant's threats, equity will afford her relief.

The circumstance that the issue could have been determined on the motion to open the default is not bar to the maintenance of the instant action.It is to be observed at the outset that even though the issue could have been litigated before the official referee, the matter was not presented to him nor passed upon.Accordingly, the order confirming his report under the circumstance could be res judicata as to that issue.While a judgment on the issues in an action is determinative of all issues which might have been litigated, this rule does not apply to orders on a motion.Authority for this conclusion may be found in Riggs v. Pursell, 74 N.Y. 370, 378-379: '* * * In Dwight v. St. John , in view of the provisions of the Code giving the right of appeal from orders, a limited effect was given to them as...