Chapman v. Chapman

—■ The plaintiff moves for an order amending the decision and order of this court so as to grant summary judgment in favor of the defendant, in order that a final judgment may be entered herein as the basis for an appeal by the plaintiff to the Court of Appeals. This motion must be denied. Our decision and order in this case affirmed an order of the Special Term denying a motion by the plaintiff for summary judgment in her favor. As we pointed out in our opinion, " for the purpose of determining whether a summary judgment for the plaintiff should be granted, we must accept the defendant’s version of the facts as to all points upon which there is an open question of fact”. Upon this basis, we concluded that it appeared "that the defendant did not have adequate notice of the pendency of the action for divorce or a reasonable opportunity to defend against that claim ”, and we accordingly felt “ constrained, upon the present record, to hold that the judgment of absolute divorce was void for want of procedural due process ”. (284 App. Div. 504, 509, 510.) Upon the trial, the questions of fact concerning which we accepted the version most favorable to the defendant for the purpose of passing upon the plaintiff’s motion for summary judgment, should be fully explored. The facts should be fully developed as to what took place in the Vermont court on December 17, 1951. If it should appear that the defendant’s attorney was present when the plaintiff’s motion to amend the complaint was granted or that, in some other manner he was given notice of the fact that the complaint had been amended from one seeking a four-year separation to one seeking an absolute divorce, prior to the time when he was given leave to withdraw from the ease, a different ease would be presented from that which was before us upon the appeal from the denial of summary judgment for the plaintiff. Motion denied, without costs. Present — Foster, P. J., Bergan, Halpern, Imrie and Zeller, JJ.