Opinion
April 23, 1941.
M. S. Meyers, for Harry Schenk, the moving party.
Joseph Olshansky, for Anna Neiman, also known as Anna Schenk.
This is an application by the second husband to set aside and vacate a decree procured by his present wife against her former husband in June, 1933, in a so-called Enoch Arden proceeding. (Dom. Rel. Law, § 7-a.) This is a direct attack upon a decree and is based upon the charge that the wife procured the same through fraud and had made false statements as to material facts in that proceeding concerning the whereabouts of the former husband. While the decree may not be challenged collaterally ( Arcuri v. Arcuri, 265 N.Y. 358), it would seem that it may be attacked in the same proceeding. Nevertheless, this application cannot be granted. The papers presented disclose that the first husband is now living, and there is no evidence before the court that he has received notice of this motion. Unquestionably, some legally approved form of notice should be given to him. Not only is he a party within contemplation of the law but it may well be that he changed his status on the strength of the decree and to now vacate it without giving him an opportunity to appear and be heard would result in a grave injustice not only to him but to others who now might stand in close relationship to him.
For these reasons the application is denied, with leave to renew on proper papers and submission of satisfactory proof to the court that the first husband has received proper notice of the motion.