Provost v. Provost — 18 N.Y.S. 896

Majority

p. 896

Provost v. Provost.

(Supreme Court, General Term, Second Department.

May 9, 1892.)

Headnote

Summons in Action fob Divorce—Proof of Service—Setting Aside Judgment.

Where proof of service of the summons, complaint, and notice in an action for divorce is full and satisfactory, and the affidavits read in opposition to a motion to set aside the judgment clearly prove such service, and the falsity of the affidavits of the moving party, the motion should be denied.

Appeal from special term, Kings county.

Action by Evelyn T. Provost against William T. Provost for an absolute divorce. J udgment for plaintiff. From an order denying a motion to vacate and set aside the judgment, defendant appeals.

Affirmed.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Geo. A. Stearns, for appellant. David Provost, for respondent.

This is an appeal from an order denying a motion made by the defendant to set aside a j udgment in favor of the plaintiff against the defendant. The action is by a wife against her husband for an absolute divorce on the ground of adultery. Thesummons, complaint, and notice were served upon the defendant in pursuance of an order of the court. The motion was based upon the affidavit of the defendant that no papers were ever served upon him in the action, and the affidavit of another person, tending to corroborate the affidavit of the defendant. The papers were served in Chicago, where the defendant resides, and the proof of service is full and satisfactory. Moreover, the affidavits read in opposition to the motion show plainly that sudft service was made, and that tne affidavit of the defendant is false. The appeal is entirely destitute of merit, and the order should be affirmed, with costs and disbursements. All concur.