Frederick G. Britton for petitioner.
Irwin Pakula for respondent.
if any, in Nevada (see
Lynn v. Lynn, 302 N.Y. 193, 204,
supra) or in the Supreme Court of the State of New York, especially under section 1170-b of the Civil Practice Act, entitled: "§ 1170-b.
Maintenance of wife where divorce or annulment previously granted on non-personal jurisdiction." This newly enacted addition to the Civil Practice Act is an enlargement of the proposed enactment discussed at pages 557 through 558 of
"Morton" v. "Morton" (199 Misc. 547,
supra). (See, also,
Vanderbilt v. Vanderbilt, 133 N. Y. S. 2d 314, 317; but see
Methfessel v. Methfessel, 124 N. Y. S. 2d 663.) By timely application respondent might have procured a vacatur of the September 24, 1952, order of this court as of the date of the entry of the Nevada divorce decree. He continued, however, to pay said order up to the final deposit received June 9, 1954. It does not appear whether this was done to lull petitioner into continued disregard of the Nevada action until the expiration of the six months' limitation period imposed by rule 45 of the Rules of the District Court of Nevada. Nevertheless, on the one hand, petitioner "cannot possibly complain if defendant made payments to her, which he was not obligated to make, either gratuitously or under a mistake of law" (
Lynn v. Lynn, 302 N.Y. 193, 205,
supra), and, on the other hand, respondent has no right to reclaim any part of the deposits made by him in this court after January 6, 1953, (see N. Y. City Dom. Rel. Ct. Act, § 29, subd. 2, and
Dominico v. Dominico, 57 N. Y. S. 2d 79, 85). Notify parties and attorneys.