Lipman v. Lipman

In an action for separation from bed and board upon the grounds of abandonment and non-support, order granting, on terms, the motion of the respondent, returnable April 5, 1937, to vacate and set aside the judgment of separation in favor of the appellant, entered in this action by default on May 13,1933, affirmed, without costs. The Special Term, in the situation disclosed in this record, had inherent power, notwithstanding the provisions of the Civil Practice Act, section 528, to entertain and to grant the motion of the respondent, made more than two years after the entry of the judgment. Our determination is not in conflict with the ruling of the Court of Appeals in Gysin v. Gysin (263 N. Y. 509), in which, in a dictum, a suggestion is made which may be construed to mean that unless fraud exists such a motion to vacate may not be made after the expiration of two years from the entry of the judgment. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.