Blank v. Blank

• Citation: 107 N.Y. 91,13 N.E. 615
• Parties: BLANK v. BLANK.
• Decision Date: 11 October 1887
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 91

13 N.E. 615

BLANK

v.BLANK.

Court of Appeals of New York.

October 11, 1887.

Appeal from general term of the supreme court, Second department.

Saml. L. Gross, for appellant.

George Zabriskie, for respondent.

RAPALLO, J.

We think the judgment in this case was right, although we do not concur in the ground upon which it was rendered at special term. It was there held by the trial judge that the judgment of nullity of marriage rendered between these parties in the Second department on the twenty-third of September, 1876, not having been reversed on appeal, and a motion to open the default having been denied on the twenty-first of February, 1881, that judgment and the order denying the motion precluded the plaintiff from maintaining this action. This action was brought to set aside the judgment of nullity, on the ground that the present plaintiff had been induced by the defendant, by untrue statements as to the law of New York, to refrain from consulting counsel, and from defending said action of nullity.

We concur in so much of the dissenting opinion of DANIELS, J., at general term in this case, as holds that in this action to set aside the judgment of nullity, on the ground that it was obtained by fraud, the judgment thus sought to be set aside could not be set up as a bar to the action to set it aside. This action did not seek to retry any question of fact which had been tried in the first action; and we also agree that the order of February 21, 1881, denying the motion to open the default of the present plaintiff, and let her in to answer, was not a bar to their action to set aside the judgment as having been obtained by fraud. Riggs v. Pursell, 74 N. Y. 370;Foote v. Lathrop, 41 N. Y. 358.

But we are of opinion that the judgment in this case should be sustained on the ground that the plaintiff did not, in her complaint in this action, nor by any offer of proof on the trial, attempt to controvert any of the facts set up in the complaint in the action for nullity, nor to show that she had any defense to that action of which she had been deprived. Her charge of fraud consists simply of an allegation, in substance, that the defendant, who is a lawyer, represented to her that her marriage with him was void by the law of New York, and that she had incurred liability to a criminal prosecution for entering into it, and that she was by these representations induced to refrain from defending the action. Without discussing the...