Opinion
April 26, 1971
Judgment of the Supreme Court, Richmond County, dated September 8, 1970, insofar as appealed from, modified on the law and facts and in the exercise of discretion by striking therefrom the second, third, fourth, fifth and sixth paragraphs and substituting therefor provisions directing that (a) defendant pay to plaintiff $60 per week for her support and maintenance; (b) defendant's counterclaim be dismissed on the merits; (c) title to the subject premises known as 244 Tompkins Avenue, Staten Island, N Y be deemed held by plaintiff and defendant as tenants in common; and (d) defendant pay to plaintiff $1,250 for counsel fees and expenses to be paid to plaintiff's counsel within 30 days after entry of the order hereon, with credit to be given defendant for any amounts paid on the $750 award contained in the judgment appealed from. As so modified, judgment, insofar as appealed from, affirmed, with costs to appellant. Inconsistent findings of fact are reversed and new findings are made as indicated herein. The purported threats and fraudulent representations are alleged to have been made upon return from the honeymoon in July, 1958. Defendant's grievances as to his spouse's post-threat unwifely conduct were aired in the separation suit. The court, however, adjudicated in 1962 that defendant had abandoned plaintiff and that the attempted reconciliation was not bona fide. The findings below that the conciliation letters were suppressed are unsubstantiated and are contrary to the evidence. The evidence in the present divorce action as to the post-threat unwifely conduct is essentially that passed upon in 1962. Further, plaintiff's stenographic and typing ability also existed in 1962 at the time that the court fixed alimony at $60 per week on defendant's then gross income of approximately $16,000. Subsequent to the 1962 separation judgment, plaintiff obtained a real estate salesman's license and experience in that occupation. However, defendant's gross income as a medical doctor increased to approximately $33,000 and his capital to about $49,000. The divorce judgment supersedes the separation decree; and the court, having personal jurisdiction of the parties in the suit instituted by plaintiff, may render a de novo alimony determination ( Rosenberg v. Rosenberg, 3 A.D.2d 944; Auerbach v. Auerbach, 187 Misc. 993; Bishop v. Bishop, 15 A.D.2d 494). Applying the standards set forth in section 236 Dom. Rel. of the Domestic Relations Law, support under the divorce judgment should also be at the rate of $60 per week. We find that the evidence of fraud, duress and failure of consideration is insufficient in law and that the judgment for defendant on the counterclaim was contrary to the weight of the credible evidence. Defendant did not overcome the presumption of gift ( Mittman v. Mittman, 30 A.D.2d 867, affd. 24 N.Y.2d 826). We find further that the counterclaim is barred by the Statute of Limitations. The pleaded allegations with respect to the one-and-one-half year course of conduct, and the testimony, show that defendant had sufficient knowledge of the facts to render him chargeable with discovery in January, 1959, if not earlier. The gravamen of the cause of action determines which Statute of Limitations is controlling ( Marano v. Lo Carro, 62 N.Y.S.2d 121, affd. 270 App. Div. 999). Although equitable relief is requested, the gravamen of defendant's claims is actual fraud; the six-year statute is controlling dating from the discovery of the fraud ( Clavin v. Clavin, 41 N.Y.S.2d 377, affd. 267 App. Div. 760; former Civ. Prac. Act, § 48, subd. 5; Marano v. Lo Carro, supra). However, the action would be barred even if the 10-year statute (former Civ. Prac. Act, § 53) were controlling. The counterclaim was served February 4, 1970. If it be deemed served as of the institution of suit on May 19, 1969, it would still be untimely. The divorce having converted the tenancy by the entirety into a tenancy in common, the rights of the parties must be governed accordingly (see Plancher v. Plancher, 35 A.D.2d 417). Hopkins, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.