Cohen v. Cohen

Full title: HARRY COHEN, Appellant and Respondent, v. RUTH COHEN, Respondent and…

Court: Court of Appeals of the State of New York

Date published: Oct 15, 1942

44 N.E.2d 404 (N.Y. 1942)

44 N.E.2d 404

Opinion

Argued May 26, 1942

Decided October 15, 1942

Appeal from the Supreme Court, Appellate Division, Second Department, KADIEN, J.

Noah Feldman for plaintiff, appellant and respondent.

Jerome E. Leon and George Shakin for Otto Frankel, amicus curiae. Joseph Protter and John W. Browne for defendant, respondent and appellant.

Per Curiam.

The 1938 judgments of annulment were, as the Appellate Division held, insufficient because they did not comply with the requirements of the statute; (Domestic Relations Law, § 7, subd. 5; Cons. Laws, ch. 14) as to care and maintenance of the defendant during life. Those judgments should either have contained definite provisions for the defendant's care and maintenance throughout her life, regardless of whether she continued to be confined in a State hospital, or they should have contained a grant of leave to defendant to apply, in the future, at the foot thereof for their modification. In correcting these defects in the 1938 judgments, however, the Appellate Division should not have vacated the judgments but should have dealt only with their provisions for defendant's support, particularly since the plaintiff-husband had meanwhile remarried, on the faith of those judgments. The terms of the new, or 1942 judgment here appealed from do, we think, full justice as between the parties, except that the result should have been achieved by a modification of the 1938 judgments, not by the vacating of those judgments, and entry of a new one with a new effective date.

The judgment appealed from should be reversed, without costs, and the case remitted to the Special Term with instructions to enter a new final judgment of annulment in favor of plaintiff and against defendant, to be dated September 26, 1938, and entered nunc pro tunc as of that date, which judgment shall otherwise be in all respects identical with the judgment appealed from, except that it shall contain a further provision, reserving to each party the right to apply at any future time, at the foot thereof for modification of the provisions for defendant's care and maintenance, and the security therefor.

The judgment should be reversed, without costs and the case remitted to the Special Term for proceedings in accordance with this opinion.

LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.

Judgment accordingly.