Hyperlawhypertext legal databasebeta Rothstein v. Rothstein 81 N.Y.S. 342

← Cases

Rothstein v. Rothstein

81 N.Y.S. 342 Court N.Y. Sup. Ct. English

Delivered by BLANCHARD, J.

Contents

Majority

p. 342
(40 Misc. Rep. 101.)
ROTHSTEIN v. ROTHSTEIN.
(Supreme Court, Special Term, New York County.
February, 1903.)

Headnote

1. Divorce—Interlocutory Judgment—Filing.
Under Code Civ. Proc. § 1774, providing that no final judgment in an uncontested action for divorce shall be entered until after three months from the filing of the decision of the court, a final judgment cannot be granted, though the interlocutory judgment was signed three months before the application, and filed with the clerk- of a particular part of the Supreme Court, but not with the' county clerk, who is the clerk of the Supreme Court.
Action by Rachel Rothstein against Max Rothstein. Application for final judgment.
Denied.
Charles Frankel, for plaintiff.

Application for final judgment in uncontested action for a divorce pursuant to section 1774 of the Code of Civil Procedure. I cannot grant final judgment in this case. Section 1774 of the Code distinctly provides that “no final judgment * * * dissolving a marriage shall be entered * * * until after the expiration of three months after the filing of the decision of the court or report of the referee.” It is true that the interlocutory decree was signed more than three months ago, but it was not filed for the requisite period of time. I am not prepared to accept counsel’s statement that it was the error of the clerk of the part that the interlocutory judgment was not filed. There may have been a fee chargeable by the county clerk for the filing of the judgment. Counsel should have been diligent to see that his interlocutory judgment was filed. The mere receipt by the clerk having charge of the part of the court where the justice is sitting of a paper cannot be deemed the equivalent of filing with the county clerk, who is the clerk of this court. Were it otherwise, a search in the county clerk’s office would not disclose

p. 343
the decree, and a party interested would have no means of ascertaining whether or not a decree had in fact been made. It appearing that the interlocutory decree was not filed until February 18, 1903, in accordance with the views expressed I must decline the present application for final judgment.

Application denied.