Neuman v. Neuman

• Decision Date: 23 October 1964
• Citation: 44 Misc.2d 232,253 N.Y.S.2d 405
• Court: New York Supreme Court
• Parties: Bernard NEUMAN and Sandra Goldstein, Plaintiffs, v. Dorothy NEUMAN, Ramson, Bogaty, Trainor & Wallman, Yellon, Banno & Lombardo, Sanford D. Bogaty and Herman Yellon, Defendants.

Page 405

253 N.Y.S.2d 405

44 Misc.2d 232

Bernard NEUMAN and Sandra Goldstein, Plaintiffs, v. Dorothy NEUMAN, Ramson, Bogaty, Trainor & Wallman, Yellon Banno & Lombardo, Sanford D. Bogaty and Herman Yellon, Defendants.

Supreme Court, Special Term, New York County, Part I.

Oct. 23, 1964.

Rubin & Gold, New York City (Leonard E. Friedman, New York City, of counsel), for plaintiffs.

Yellon, Banno & Lombardo, Mineola (Herman Yellon, Mineola, of counsel), for defendants Dorothy Neuman, Herman Yellon, and Yellon, Banno & Lombardo.

Ramson, Bogaty, Trainor & Wallman, New York City, for defendants Bogaty, Trainor & Wallman.

SAMUEL J. SILVERMAN, Justice.

Defendants Dorothy Neuman, Herman Yellon, and Yellon, Banno & Lombardo move for summary judgment dismissing the complaint. Plaintiff Bernard Neuman and the defendant Dorothy Neuman were married on March 26, 1944. Two children were born of that marriage. Plaintiff husband had left the marital abode in April 1963. In July 1963, the defendant wife had instituted an action for legal separation against the plaintiff husband, which was disposed of by stipulation of August 16, 1963: the stipulation provided for an inquest in the wife's favor and made various provisions for support, custody, etc.

In April 1964, there were discussions between the parties looking toward a divorce, which plaintiff husband wanted. As a result, the parties entered into a formal separation agreement, dated April 27, 1964. This agreement was more favorable to the wife than the stipulation of settlement in at least the following respects: (a) $5,000 cash was to be paid to the wife; (b) the husband deeded the residence of the parties to the wife; and (c) the support payments were specifically allocated in part to the children, with consequent favorable tax consequences to the wife. On the other hand, the wife waived inheritance rights.

The plaintiff husband contends that these additional benefits to the wife were a premium to her for a divorce. It is at least clear that the husband was unwilling to consent to these terms except as incidental to a divorce; and the wife was opposed to a divorce unless these terms were agreed upon.

The various documents were delivered in escrow to the attorneys; the wife's attorneys holding the separation agreement, the deed, and a letter concerning joint income tax returns; the husband's attorneys holding various checks. By written agreement, the escrows were to be 'exchanged' when the wife's attorneys sent the husband's attorneys a certified copy of a divorce decree.

On May 2, 1964, the defendant wife appeared personally in Juarez, Mexico, where she commenced an action for divorce against the plaintiff husband. Therein she also sought approval of the April 27, 1964, agreement. Plaintiff husband appeared in that action through an authorized attorney.

Before the divorce proceedings in Mexico were completed, and on May 6, 1964, plaintiff husband and his co-plaintiff, Sandra Goldstein (the guarantor of the separation agreement and later his second wife), through new attorneys, served on the defendant wife's attorneys the summons and complaint in this action. The complaint, verified May 5, 1964, asks that the escrowees be compelled to surrender to plaintiffs the various escrowed documents and checks; that the documents be cancelled or destroyed; and that the separation agreement and the deed be declared null and void.

But on May 9, 1964, the plaintiff husband personally appeared in Mexico and, on his petition, sought the entry of a decree of divorce upon plaintiff's complaint in the divorce action. A final decree of divorce, dated May 14, 1964, was thereupon granted. By this final decree, the Mexican court 'finds' in part:

'FOURTH: The Agreement entered into by the parties on April 27, 1964, and signed on such date before Helen Gargiulo, a Notary Public in and for the County of Nassau, State of New York, U.S.A., which is incorporated herein by reference, be and it is hereby approved, and shall subsist at all times.'

Between commencement of the present action on May 6, 1964, and May 14, 1964, the defendant wife apparently offered to undo all proceedings and to revert to the separation action.

Plaintiffs intermarried on May 17, 1964. Subsequently, and on May 23, 1964, defendant Dorothy Neuman was served with the summons in this action.

The present action is based on the provisions of Section 51 of the Domestic Relations Law. Plaintiffs contend that the agreements are illegal as being made in consideration of and to procure a divorce.

1. No attack is made on the jurisdiction of the Mexican court to grant the decree of divorce, which might involve a question of jurisdiction of the subject matter. Jurisdiction to pass on the separation agreement would seem to involve only a question of jurisdiction over the person; and that the Mexican court surely had.

In such circumstances,...