Leitman v. Leitman

• Decision Date: 21 July 1959
• Citation: 190 N.Y.S.2d 188,21 Misc.2d 653
• Parties: Sylvia LEITMAN v. Julius LEITMAN, Miriam Knigin, also known as Miriam Leitman, Lena Leitman, Anne Leitman, also known as Anne West, David Leitman, Elaine Eames and Leitman Furs Inc.
• Court: New York Supreme Court

Page 188

190 N.Y.S.2d 188

21 Misc.2d 653

Sylvia LEITMAN v. Julius LEITMAN, Miriam Knigin, also known as Miriam Leitman, Lena Leitman, Anne Leitman, also known as Anne

West, David Leitman, Elaine Eames and

Leitman Furs Inc.

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

July 21, 1959.

Rodin & Rodin, New York City, for plaintiff.

Knigin & Horing, Brooklyn, for defendants.

LOUIS L. FRIEDMAN, Justice.

Innumerable motions have been made by the parties to the controversies before this court. The controversies arise out of a decree of separation entered into more than twenty years ago, and in some respects, out of a stipulation settling that separation action, on the basis of which an inquest was taken and the decree was entered. Subsequently, a Florida decree of divorce was entered in favor of defendant husband, and he thereafter remarried. Some time after such remarriage, he stopped making payments provided for by the decree of separation, and a motion to enter judgment by reason of such non-payments is now pending and undetermined before another justice of this court. Since that time, motion after motion has been made, another action or actions have been instituted and the court has been deluged with various applications of one kind or another. Through application made by the plaintiff, alimony has been increased, and despite all orders of the court, plaintiff is still receiving no financial assistance from the defendant, her remedies being delayed by continuous motions, appeals and other steps. She is now the recipient of public welfare, has testified that she has been living by candlelight because she does not even have the funds to pay for electricity, and there seems to be no reason why the public should assume the obligation of her support, when she is legally entitled to receive such support from the defendant. His own testimony to the effect that his earnings exceed $20,000 a year, indicate that plaintiff should not be obliged to resort to welfare payments for her subsistence.

The three motions now pending before the court, will be disposed of in this decision, and separate orders with respect to each of the decisions may be entered therein.

Defendants move, pursuant to Rule 107 of the Rules of Civil Practice, for an order dismissing the first four causes of action in the complaint upon the ground that the statute of limitations bars said causes of action. Defendants further move pursuant to Rule 106 of the Rules of Civil Practice for judgment dismissing the second to the sixth causes of action, inclusive, on the ground that they fail to set forth facts sufficient to constitute causes of action, and further move under Rule 103 of the Rules of Civil Practice to strike out the fifth and sixth causes of action as sham and frivolous.

The first cause of action is brought to recover payments allegedly due under a separation agreement. The agreement referred to in the complaint is the stipulation of settlement to which the court has already referred. The court holds that this stipulation is not a separation agreement, that it was never intended that it should be considered as such, that it was intended that said stipulation be incorporated into and made part of the final decree, that the stipulation was merged in the decree and that plaintiff's rights, if any, must be governed by the decree and not the stipulation. The stipulation was in the nature of a consent judgment with the same force and effect as any other judgment (Evans v. Stein, Sup., 59 N.Y.S.2d 544, affirmed 269 App.Div. 1052, 59 N.Y.S.2d 625, leave to appeal denied 270 App.Div. 810, 60 N.Y.S.2d 288), and until vacated and set aside in the manner provided by law it stands as a final disposition of the rights of the parties. The court accordingly is dismissing this cause of action not on the theory of the statute of limitations but rather under the prayer for other and further relief.

The relief sought in the second cause of action which is an action at law separate and distinct from the original action for separation is one for judgment for the alleged arrears of alimony.

Alimony is a creature of statute and the means and methods by which it is obtained are specifically set forth in the applicable sections of the Civil Practice Act. A claim for unpaid alimony under a domestic matrimonial judgment or order cannot be made the basis for recovery in an independent action. The exclusive remedy is an application in the matrimonial action pursuant to the provisions of section 1171-b of the Civil Practice Act (Maynard v. Maynard, Sup.App.T., 112 N.Y.S.2d 813; Dempsey v. Dempsey, 205 Misc. 495, 131 N.Y.S.2d 350; Schwartz v. Schwartz, 206 Misc. 548, 133 N.Y.S.2d 813; Snow v. Snow, 13 Misc.2d 966, 177 N.Y.S.2d 607). The cases cited by the plaintiff are inapposite in their facts or distinguishable in law. It is apparent that the plaintiff was aware of her rights under the aforesaid sections of the Civil Practice Act and the cases cited, as a prior application instituted by her directing the entry of a judgment for such arrears is now pending before another justice of this court. Accordingly, the motion addressed to this cause of action under Rules 106 and 107 of the Rules of Civil Practice is...