Kantrowitz v. Kantrowitz
| Decision Date | 19 May 1964 |
| Citation | 21 A.D.2d 654,249 N.Y.S.2d 723 |
| Parties | Dorothy KANTROWITZ, Petitioner-Appellant, v. Fred KANTROWITZ, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
M. Gelbman, Yonkers, for petitioner-appellant.
H. Soba, Mineola, for respondent-respondent.
Before BREITEL, J. P., and VALENTE, McNALLY, STEVENS and EAGER, JJ.
Order, entered on November 29, 1963, dismissing petition for support, unanimously reversed on the law and on the facts, and a new trial ordered. If, as contended by petitioner, jurisdiction of the Mexican court was acquired as a result of a fraudulently induced power of attorney and appearance by her, the decree of divorce obtained by respondent is not entitled to protection or recognition under principles of comity and may be attacked collaterally in the courts of this State. (Cf. Prime v. Hinton, 244 App.Div. 181, 183, 184, 279 N.Y.S. 37, 39, 40 and cases cited. See also, Querze v. Querze, 290 N.Y. 13, 47 N.E.2d 423; Averbuck v. Averbuck, 270 App.Div. 116, 58 N.Y.S.2d 392; White v. White, 26 Misc.2d 631, 208 N.Y.S.2d 746.) The testimony here is that the parties were living together as husband and wife when the wife was induced to sign a power of attorney and to consent to an appearance in the divorce proceeding to be instituted in Mexico. The court was bound to scrutinize most closely all circumstances to ascertain whether or not any deception, fraud or coercion was practiced upon the petitioner. The relation between a husband and wife is regarded as one of special confidence and trust. Since the parties were still living together as husband and wife at the time the petitioner was induced by respondent to execute the power of attorney for her appearance in the proceeding in Mexico, the respondent was under the duty to exercise the utmost good faith in his representations to the petitioner. This instrument was to be used to his advantage for the purpose of severing the marital ties, so the burden was upon him to show that the petitioner executed the same freely and deliberately with a full understanding of her rights. (See 15 N.Y.Jur., Domestic Relations, § 210, p. 433; 41 C.J.S. Husband and Wife § 120, p. 594; Scheinberg v. Scheinberg, 249 N.Y. 277, 164 N.E. 98; Matter of Smith, 243 App.Div. 348, 352, 353, 276 N.Y.S. 646, 651, 652; Matter of Nowakowski, 1 A.D.2d 250, 149 N.Y.S.2d 489, affd. 2 N.Y.2d 618, 162 N.Y.S.2d 19, 142 N.E.2d 198.) The record here shows the existence of issues of fact with...
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...J., dissents and votes to reverse in an opinion. BURKE, J., taking no part. In each action: Order affirmed. 1 Kantrowitz v. Kantrowitz, 21 A.D.2d 654, 249 N.Y.S.2d 723; Matter of Klemas v. Klemas, 20 A.D.2d 530, 245 N.Y.S.2d 952; Heine v. Heine, 19 A.D.2d 695, 242 N.Y.S.2d 705, affg. Sup., ......
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Harges v. Harges
...may be collaterally attacked if jurisdiction of the Mexican court was acquired through fraud, coercion or duress, Kantrowitz v. Kantrowitz, 21 A.D.2d 654, 249 N.Y.S.2d 723; LaBarr v. LaBarr, 278 App.Div. 995, 105 N.Y.S.2d 743, 744; Averbuck v. Averbuck, 270 App.Div. 116, 58 N.Y.S.2d 392; Pr......
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Mahoney v. Mahoney (In re Mahoney)
...not whether a person holding a valid power of attorney could agree to a divorce for the principal. See Kantrowitz v. Kantrowitz , 21 A.D.2d 654, 249 N.Y.S.2d 723 (1964) ; Kurman v. Kurman , 11 Misc.2d 1035, 174 N.Y.S.2d 128 (1958).¶11 We recognize that some states have reached the opposite ......