Appellate Division of the Supreme Court of New York, Second DepartmentApr 15, 1946
270 App. Div. 905 (N.Y. App. Div. 1946)

April 15, 1946.

In an action for divorce, order granting defendant's motion for a money judgment for arrears of temporary alimony, and the judgment entered thereon, and order denying plaintiff's motion to vacate an order of August 8, 1939, allowing alimony and counsel fees, reversed on the law and the facts, without costs, and the issues presented by the affidavits referred to an official referee to hear and to report, with his opinion, to Special Term, Part V, of the Supreme Court, Kings County. The conflicting affidavits present issues as to whether defendant, in moving in 1939 for alimony and counsel fees, perpetrated a fraud on the court in withholding information as to her assets and earning power. In view of plaintiff's absence from the country, he should also be given an opportunity to sustain his allegation that, at the time the order was made and thereafter, the defendant had returned to and was living with her first husband. (Civ. Prac. Act, § 1172-c.) Lewis, P.J., Hagarty, Carswell, Aldrich and Nolan, JJ., concur.