Opinion
November 13, 1925.
Jerome C. Jackson, for the plaintiff.
Berlin Berlin, for the defendant.
It is undisputed that between the date of the interlocutory decree and the final judgment herein the plaintiff and the defendant resumed marital relations and that a child has been born to them.
In Cary v. Cary ( 144 A.D. 846), SMITH, P.J., writes of such a situation that had it "* * * been known to the court at the time of the entry of the final judgment, the final judgment would undoubtedly have been denied. The fact that it was concealed from the court at that time gives full warrant to the court, upon the discovery of this fact after the entry of final judgment, to vacate and set aside the same." In that case the motion was made within the two-year period now prescribed by section 528 of the Civil Practice Act, but in Furman v. Furman ( 153 N.Y. 309), ANDREWS, Ch. J., writes of a similar situation (at p. 314): "The power of the court to control its judgments and to set aside a judgment for fraud or deceit practiced by a party is undoubted, and is not subject to the limitation of time prescribed in sections 724, 1282 and 1290 of the Code of Civil Procedure. Cases of fraud are not within these sections."
Section 528 of the Civil Practice Act is identical with sections 1290 and 1291 of the Code of Civil Procedure.
The concealment was in effect a fraud upon the court and the motion to vacate the judgment is granted.