Merrick v. Merrick
| Decision Date | 31 December 1934 |
| Citation | 194 N.E. 55,266 N.Y. 120 |
| Parties | MERRICK v. MERRICK et al. |
| Court | New York Court of Appeals Court of Appeals |
Action by William H. Merrick against Elizabeth Merrick for divorce, in which a decree was rendered for plaintiff forbidding defendant to remarry during plaintiff's life. An order of Special Term entered nunc pro tunc permitting defendant's marriage with George F. Bartlett was affirmed by the Appellate Division (241 App. Div. 799, 270 N. Y. S. 927), and George F. Bartlett appeals, and the following questions are certified.
‘(1) Has the court power, as a matter of law, to enter an order on the 16th day of June, 1933, modifying a decree entered in 1920, nunc pro tunc as of the 16th day of November, 1925?
‘(2) Has the court, as a matter of law, the power to enter an order such as aforesaid and thereby affect the substantial vested rights of the appellant?
‘(3) In view of the facts and circumstances in this proceeding, was the court justified in entering the order aforesaid?
‘(4) Did the lower court abuse its discretion in making the order aforesaid?’
Orders of Appellate Division and Special Term reversed, motion denied, first, second, and third questions answered in negative, and fourth question not answered.
Appeal from Supreme Court, Appellate Division, First department.
Edgar F. Hazleton and G. W. M. Wieboldt, both of Jamaica, L. I., and V. H. Kalenderian, of New York City, for appellant.
Irving Lubroth and Howard A. Newman, both of New York City, for respondent.
Respondent Elizabeth Merrick was the wife of William H. Merrick, and in the year 1920 he obtained against her in this state a decree of absolute divorce. That decree forbade her to remarry during Merrick's life. Power resided in the court, after the lapse of three years from the rendition of the decree, to modify the judgment upon proof of defendant's good conduct subsequent to the dissolution of the marriage (Domestic Relations Law [Consol. Laws, c. 14], § 8, Laws 1919, c. 265), but, without procuring such a modification, respondent in 1925, during the lifetime of Merrick, married appellant, George F. Bartlett. The conclusion is justified that her omission was due merely to ignorance of the law.
Bartlett instituted an action to annul his marriage with respondent upon the ground that it was void by reason of the decree forbidding remarriage and upon the additional ground that he had fraudulently been induced to marry respondent by her misrepresentation that she had been plaintiff in the divorce action. During the pendency of the annulment action in May, 1933, respondent moved at Special Term for an order nunc pro tunc as of November 16, 1925, permitting her marriage with Bartlett, and on June 16, 1933, her motion was granted.
Irregularity in procedure may, of course, be corrected by orders nunc pro tunc. Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402, 82 N. E. 448. When a ruling has in fact been made but is improperly evidenced by a defective mandate, or by no mandate at all, an appropriate and suitable order or judgment which manifests the existence of a determination may subsequently be granted to take effect as of the date of such determination. It cannot record a fact as of a prior date when...
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