Majority
p. 373Samuel Gioia, Sometimes Called Samuel Joy, Appellant, v. Olga Cecilia Gioia, Sometimes Called Olga Cecilia Joy, Respondent. Fourth Department, October 9, 1935.
Dwyer, Reilly, Roberts, McLouth & Dicker [Carroll M. Roberts of counsel], for the appellant.
Louis I. Bunis, for the respondent.
The summons and complaint in this action were served on defendant who understood their contents and destroyed the papers. Defendant is guilty of laches since she did not make this motion until about thirteen months after the final decree was entered. It is clear that defendant has not outlined a meritorious defense to plaintiff’s action. If the fact be that she fraudulently participated in bringing about a judgment of divorce against herself in plaintiff’s favor, she is barred thereby.from the relief she now seeks, (Kinnier v. Kinnier, 53 Barb. 454 ; affd., 45 N. Y. 535 ;
p. 374
Karren v. Karren, 25 Utah, 87 ; 69 P. 465 .) In addition the interests of the innocent second wife of plaintiff and of their child appeal to the conscience of the court.
All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.
Order reversed on the law and the facts, without costs, and motion denied, without costs.
Cases cited
- Kinnier v. Kinnier 53 Barb. 454 p. 373
- Kinnier v. Kinnier 45 N. Y. 535 p. 373