Opinion
June 27, 1960
In an action to recover damages for conspiracy to deprive plaintiff of property rights arising from her marriage to the defendant Norman Holland, the defendants, other than Norman and Judith Holland, appeal from an order of the Supreme Court, Nassau County, dated February 11, 1960, denying their motion to dismiss the complaint for insufficiency. Order affirmed, with $10 costs and disbursements. The complaint is based on a conspiracy to deprive plaintiff of her property rights after her husband's affections already had been alienated. There is no allegation that the moving defendants aided and abetted in that alienation. Therefore, the action is not barred by section 61-a of the Civil Practice Act. ( Ruza v. Ruza, 3 A.D.2d 739, motion for leave to appeal denied 3 A.D.2d 824; Miller v. Miller. 254 App. Div. 586. ) The denial by the Florida Supreme Court of plaintiff's petition for leave to file a bill of review of the Florida divorce decree is not an adjudication on the merits that the decree was not procured by fraud. Beldock, Acting P.J., Christ, Pette and Brennan, JJ., concur.