decree bar in New York

2002Her prospective objections are based primarily on petitioner’s imprudent management of the trust’s holdings of Eastman Kodak stock in the 1970’s, as set forth in Matter of Janes. 2 A fact-finding hearing was conducted to ascertain the circumstances surrounding petitioner’s dispatch of the waiver to respondent and respondent’s execution thereof, and whether such circumstances amounted to “fraud, misrepresentation, or other misconduct” on petitioner’s part (see, Matter of Paul, 105 AD2d 928, 929 ). 3 Based upon the evidence adduced, the court makes the following findings of fact and conclusions

1994Supreme Court adequately set forth the statutory factors in determining equitable distribution (Domestic Relations Law § 236 [B] [5] [d]) and maintenance (Domestic Relations Law § 236 [B] [6] [a]); the court’s distributive award was equitable (see, Lischynsky v Lischynsky, 120 AD2d 824, 827 ).

1994The disclosure in Alker (supra) can only be seen as inadequate in the sense that the trustee had made a legal mistake in allocating the stock dividends and then had not specifically advised that they might be allocable to income under local law.

1994Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendant abandoned his earlier appeal from the decree granting plaintiff a divorce (see, 22 NYCRR 1000.3 [b] [2]), and we cannot now consider his argument that the decree was in error (see, Bray v Cox, 38 NY2d 350 ).

1993(Greschler v Greschler, supra, at 378; see also, McFarland v McFarland, 70 NY2d 916 ; Gaylyn v Schwartz, 56 NY2d 969 ; Rabbini v Rabbini, supra; Robinson v Robinson, 120 AD2d 415 .) In the instant action, the husband contends that the Tel Aviv Jaffa Rabbinical Court of the State of Israel had subject matter and personal jurisdiction over the parties herein such that this court should recognize the decree under the principle of comity.

1993(Greschler v Greschler, supra, at 378; see also, McFarland v McFarland, 70 NY2d 916 ; Gaylyn v Schwartz, 56 NY2d 969 ; Rabbini v Rabbini, supra; Robinson v Robinson, 120 AD2d 415 .) In the instant action, the husband contends that the Tel Aviv Jaffa Rabbinical Court of the State of Israel had subject matter and personal jurisdiction over the parties herein such that this court should recognize the decree under the principle of comity.

1993(Greschler v Greschler, supra, at 378; see also, McFarland v McFarland, 70 NY2d 916 ; Gaylyn v Schwartz, 56 NY2d 969 ; Rabbini v Rabbini, supra; Robinson v Robinson, 120 AD2d 415 .) In the instant action, the husband contends that the Tel Aviv Jaffa Rabbinical Court of the State of Israel had subject matter and personal jurisdiction over the parties herein such that this court should recognize the decree under the principle of comity.

1986A separation agreement which is incorporated, but not merged, into a divorce decree survives the decree and the decree does not bar a subsequent challenge to the validity of the separation agreement based on fraud (Strauss v Strauss, 78 AD2d 549 ).

1986This court’s decision in Lahaie v Stortecky ( 91 AD2d 723 ), relied on by defendant, is clearly distinguishable.

1976Where, as here, the parties have stipulated that the agreement not be incorporated or merged in a subsequent divorce decree, the decree does not bar challenge to the agreement itself (see Flood v Thiesing, 273 App Div 548, 550 , affd 298 NY 700 ; Lappert v Lappert, 20 NY2d 364, 369 ).

1976Where, as here, the parties have stipulated that the agreement not be incorporated or merged in a subsequent divorce decree, the decree does not bar challenge to the agreement itself (see Flood v Thiesing, 273 App Div 548, 550 , affd 298 NY 700 ; Lappert v Lappert, 20 NY2d 364, 369 ).

1976Where, as here, the parties have stipulated that the agreement not be incorporated or merged in a subsequent divorce decree, the decree does not bar challenge to the agreement itself (see Flood v Thiesing, 273 App Div 548, 550 , affd 298 NY 700 ; Lappert v Lappert, 20 NY2d 364, 369 ).

1947In Matter of Continental Bank & Trust Co. of N. Y. (supra) the court declined to insert in the decree a clause to the effect that it was not binding upon those not notified.

1944(Surrogate’s Ct. Act, §§ 80, 274; Joseph v. Herzig, 198 N. Y. 456 ; Matter of Hoyt, 160 N. Y. 607 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Matter of Schley, 202 App. Div. 169 , affd. 234 N. Y. 616 .) They were also estopped under the terms of the decree to claim that the estate was a trust and not a legal life estate and that the husband should have qualified as a trustee.

1944(Surrogate’s Ct. Act, §§ 80, 274; Joseph v. Herzig, 198 N. Y. 456 ; Matter of Hoyt, 160 N. Y. 607 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Matter of Schley, 202 App. Div. 169 , affd. 234 N. Y. 616 .) They were also estopped under the terms of the decree to claim that the estate was a trust and not a legal life estate and that the husband should have qualified as a trustee.

1944(Surrogate’s Ct. Act, §§ 80, 274; Joseph v. Herzig, 198 N. Y. 456 ; Matter of Hoyt, 160 N. Y. 607 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Matter of Schley, 202 App. Div. 169 , affd. 234 N. Y. 616 .) They were also estopped under the terms of the decree to claim that the estate was a trust and not a legal life estate and that the husband should have qualified as a trustee.

1944(Surrogate’s Ct. Act, §§ 80, 274; Joseph v. Herzig, 198 N. Y. 456 ; Matter of Hoyt, 160 N. Y. 607 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Matter of Schley, 202 App. Div. 169 , affd. 234 N. Y. 616 .) They were also estopped under the terms of the decree to claim that the estate was a trust and not a legal life estate and that the husband should have qualified as a trustee.

1944(Surrogate’s Ct. Act, §§ 80, 274; Joseph v. Herzig, 198 N. Y. 456 ; Matter of Hoyt, 160 N. Y. 607 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Matter of Schley, 202 App. Div. 169 , affd. 234 N. Y. 616 .) They were also estopped under the terms of the decree to claim that the estate was a trust and not a legal life estate and that the husband should have qualified as a trustee.

1944(Surrogate’s Ct. Act, §§ 80, 274; Joseph v. Herzig, 198 N. Y. 456 ; Matter of Hoyt, 160 N. Y. 607 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Matter of Schley, 202 App. Div. 169 , affd. 234 N. Y. 616 .) They were also estopped under the terms of the decree to claim that the estate was a trust and not a legal life estate and that the husband should have qualified as a trustee.

1936(Matter of Bray, supra.) The petitioner seeks in part to support her application for the vacating of the decree by the claim that a constructive fraud was practiced upon her shortly prior to the date on which the will was admitted to probate.

1922Ambler, 564.) The person having the first estate of inheritance, and who is in esse, appears however to be a necessary party to a bill of foreclosure, to make the decree a bar either to his right, or to the right of any contingent *170 remainder-man who is not made a party to the suit.” (p. 548.) This language was repeated in New York Security & Trust Company v. Schoenberg ( 87 App. Div. 262 ; affd., 177 N. Y. 556 ), and the conclusion drawn that in ordinary foreclosure suits it is sufficient as a general rule to have as parties the first person in being who has a vested estate of inheritance,

1922Ambler, 564.) The person having the first estate of inheritance, and who is in esse, appears however to be a necessary party to a bill of foreclosure, to make the decree a bar either to his right, or to the right of any contingent *170 remainder-man who is not made a party to the suit.” (p. 548.) This language was repeated in New York Security & Trust Company v. Schoenberg ( 87 App. Div. 262 ; affd., 177 N. Y. 556 ), and the conclusion drawn that in ordinary foreclosure suits it is sufficient as a general rule to have as parties the first person in being who has a vested estate of inheritance,

1917Defendant here urges that if plaintiff’s conduct justified him in leaving her, the legal effect of her cruelty wTas equivalent to desertion or abandonment on her part, and therefore brought this case within the doctrine laid down in North v. North, supra. I cannot find that that doctrine has ever been passed upon by our court of last resort or by the United State Supreme Court.

1915Extrinsic evidence may be offered to show that the- issue offered was not litigated in the first action, and that it was in fact excluded on the objection of' the party now seeking to profit by the former decree under the doctrine of res adjudicata. “ There is support for the contention that the company (i. e., defendant here) is estopped to urge that a defense which was excluded upon its objection was involved in the action and concluded by the judgment. ’’ Virginia-Carolina Co. v. Kivven, 215 U. S. 252, 259; Rose v. Hawley, 133 N. Y. 315 .

1911I think under the circumstances disclosed the plaintiff had no right to invoke the ill-treatment which she suffered prior to the decree as a ground for another decree of separation, for those acts had spent their force and as to them the decree was a bar (Fera v. Fera, 98 Mass. 155 ), and that the learned trial court was entirely right in saying that she could not have another decree except upon facts arising subsequent to her former decree.

1895It follows, therefore, that the case of The Corn Exchange Bank v. Blye ( 119 N. Y. 414 ) and the other cases cited by counsel for defendants in the same connection, are not applicable.

1880In Merchants' Bank v. Thompson ( 55 N. Y., 7 ) the same principle was decided ; the court saying that the position of the wife was the same as if she had not been a party.