Opinion
March 3, 1977
Judgment, Supreme Court, New York County, entered November 5, 1976, granting plaintiff judgment of divorce and incorporating, but not merging, stipulation between the parties, is unanimously affirmed, without costs and without disbursements. There is a dispute between the parties as to whether they stipulated that alimony would cease on the death of either the husband and the wife, or only on the death of the wife. Plaintiff therefore requests that the judgment of divorce be set aside and that the trial be continued. But that dispute cannot invalidate the divorce. To begin with, the divorce cannot rest on consent (Domestic Relations Law, § 211). Further, the undisputed preamble to the stipulation was that the stipulation should be "deemed in the nature of a separation agreement separate and apart from the judgment to be entered hereon." The dispute appears to be whether the words "or she dies," which appear in the two versions of the transcript, were intended in substitution for, or in addition to, the words "or he dies." In general, the Trial Judge is the final authority as to the correctness of the transcript of the proceedings before the Trial Judge. The Trial Judge was present during the stipulation; the Trial Judge stated, "The application is devoid of merit. It is perfectly plain that the support arrangements will cease on the death of either of the parties."
Concur — Kupferman, J.P., Silverman, Lane and Nunez, JJ.