Newins v. Newins

• Decision Date: 04 April 1960
• Citation: 10 A.D.2d 856,199 N.Y.S.2d 266
• Parties: Kathleen Sheppard NEWINS, Plaintiff, v. W. Lawrence NEWINS, Defendant. Esther Connell Newins, individually as widow of W. Lawrence Newins, and as guardian ad litem for the infant, Lenore Rosemary Newins, Appellants-Respondents; Raymond A. Smith, Jr., special guardian of the infant, Lenore Rosemary Newins, Respondent-Appellant; Richard L. Newins, and Edward Earl Newins, temporary administrator of the estate of W. Lawrence Newins, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 266

199 N.Y.S.2d 266

10 A.D.2d 856

Kathleen Sheppard NEWINS, Plaintiff, v. W. Lawrence NEWINS, Defendant. Esther Connell Newins, individually as widow of W. Lawrence Newins, and as guardian ad litem for the infant, Lenore Rosemary Newins, Appellants-Respondents; Raymond A. Smith, Jr., special guardian of the infant, Lenore Rosemary Newins, Respondent-Appellant; Richard L. Newins, and Edward Earl Newins, temporary administrator of the estate of W. Lawrence Newins, Respondents.

Supreme Court, Appellate Division, Second Department.

April 4, 1960.

Stanley Fowler, Riverhead, for appellants-respondents; Thos. R. Costello, Riverhead, of counsel.

Davidow & Davidow, Patchogue, for respondent Richard Newins; Wallace F. Davidow, Patchogue, of counsel.

Samuel Rabson, Center Moriches, for respondent Edward Newins.

Raymond A. Smith, Jr., East Hampton, special guardian for infant Rosemary Newins.

Before NOLAN, P. J., and BELDOCK, UGHETTA, CHRIST and PETTE, JJ.

MEMORANDUM BY THE COURT.

On January 27, 1926 plaintiff and defendant were married. On September 28, 1936 a final judgment of divorce in favor of plaintiff was entered in Nassau County, which did not contain an express prohibition forbidding defendant's remarriage without permission of the court. On June 26, 1937 defendant married Beatrice Y. Field in New Jersey. On September 12, 1950 she died. Without obtaining an order modifying the 1936 divorce judgment to permit his remarriage in New York, defendant and Esther Connell Newins (an appellant-respondent herein) were married on February 10, 1959 in Suffolk County, defendant having stated in his application for the marriage license that this was his second marriage, that his former wife was dead, that he had not been divorced, and that there was no legal impediment to his right to marry. On April 30, 1959 said appellant-respondent gave birth to a daughter, Lenore Rosemary Newins. On July 1, 1959 defendant died. On September 24, 1959 an ex parte order was made on the application of said appellant-respondent modifying the September 28, 1936 judgment of divorce, nunc pro tunc as of February 6, 1959, permitting defendant to remarry in New York. The appeals are from an order entered December 2, 1959 vacating the ex parte order of September 24, 1959. The motion was granted on the authority of Merrick v. Merrick, 266 N.Y. 120, 194 N.E. 55.

Order affirmed, without costs. No opinion.