
    Anna K. Whittley, Plaintiff, v. John P. Whittley, Defendant.
    (Supreme Court, New York Special Term,
    July, 1908.)
    Divorce — Opening default and modification, revocation or vacation of judgment: Grounds and propriety — Collusion, fraud or misconduct; Laches in moving against decree.
    A judgment of divorce will not be' set aside at the suit of the defendant, who agreed that she would allow the divorce and make no defense upon the plaintiff’s agreement to pay her a sum of money and provide for her, for plaintiff’s failure to keep his agreement.
    Plaintiff’s unexcused delay of five years in bringing her action is such laches as should defeat her action, where the defendant has remarried in the meantime and had issue.
    Action to set aside a decree of divorce.
    George M. Osgoodby, for plaintiff.
    A. D. Lent (Charles A. Ogren, of counsel), for defendant.
   Seabury, J.

This action is brought to set aside a decree of divorce which is alleged to have been procured by fraud and collusion. The decree of divorce was entered in favor of the defendant against the plaintiff on the 21st day of March, 1903. The defendant in that action, who is the plaintiff in this, was properly served with process but did not appear; and the decree was entered after the proof on behalf of the plaintiff had been presented. The plaintiff alleges that the defendant agreed to provide for her and to pay her $1,000 if she would allow him to obtain a divorce from her; that she consented to allow the defendant to get a divorce from her without interposing any defense; that such divorce was granted, and that this defendant failed to pay her the $1,000 as agreed.

I am not satisfied from the evidence presented that the divorce was obtained as a result of such a collusive agreement as the plaintiff alleges. Assuming, however, that the decree of divorce was obtained as a result of collusion, that fact, in view of the circumstances existing in this case, would not justify awarding a decree in favor of the plaintiff, setting aside the decree of divorce. Upon the plaintiff’s own statement, she was a party to the perpetration of a fraud upon the court. She made an illegal agreement in order to secure $1,000 which she alleges the defendant promised to pay her, and she now complains because of the defendant’s failure to pay the amount which he promised. ‘The purpose of the plaintiff is purely mercenary. She was willing to be a party to the perpetration of the fraud upon the court; but, because the defendant has not paid her the money which he promised her, she proclaims the'fraud and asks a court of equity to set aside a judgment entered against her. The plaintiff is not in a position to invoke the aid of the court to relieve her from a situation in which, according to her testimony, she has been placed by her own participation in the fraud of which she now complains.

The decree of divorce is attacked, also, on the ground that the court was misled by perjured testimony. The son of the parties to this action, who at the time of the action for divorce was fourteen years of age, testified upon this trial that the evidence which he gave in the action for divorce was false. The testimony of this witness is unworthy of belief. It is impossible to determine whether the testimony which he gave in the divorce action is true, or whether the testimony which he gave in this action is true. The fact, however, that perjured testimony was offered to secure the decree attacked is not, of itself, ground for setting it aside. United States v. Throckmorton, 98 U. S. 68; Mayor v. Brady, 115 N. Y. 599, 615.

The plaintiff in this action has delayed bringing this action for five years. She attempts to excuse her laches upon the ground of her poverty. I am satisfied that the excuse which she now offers is not genuine. The laches of which she has been guilty is alone sufficient to prevent her recovery in this action. 4 Cyc. 720; Singer v. Singer, 41 Barb. 139.

Since the decree of divorce has been entered, the defendant has remarried and has issue by that marriage. While this fact does not of itself preclude a court from setting aside a decree of divorce in a proper case, yet it should cause great hesitation in adopting this course. The rights of innocent third parties would necessarily be affected by awarding to this plaintiff the judgment which she seeks. The rights and status of innocent parties should not be interfered with, except upon evidence of a very strong and satisfactory character. 14 Cyc. 719; Wortman v. Wortman, 17 Abb. Pr. 66; Singer v. Singer, 41 Barb. 139. The evidence presented upon this trial is certainly not of this convincing character. While the evidence upon which the decree of divorce was granted is not altogether satisfactory, yet I am convinced, from the evidence adduced upon this trial, that the decree then awarded against this plaintiff did her no injustice. It is unnecessary to review in detail this evidence. It is sufficient to point out that the circumstances under which the plaintiff left her husband’s home, her conduct in New York immediately after that event and the relations which she has maintained with the person who was named as corespondent in the action of divorce, leave no doubt in my mind that no injustice has been done the plaintiff.

It is clear, upon both the facts and the law, that judgment should be rendered in this action in favor of the defendant dismissing the complaint upon the merits.

Submit findings and proposed form of decision.

Ordered accordingly.  