Bergen v. Bergen

(dissenting). On this record, issues of fact are raised as to whether the written contract was part of a general unlawful agreement to facilitate a divorce and was given for an illegal consideration (Domestic Relations Law, § 51; Murthey v. Murthey, 287 N. Y. 740; Matter of Hellwig, 178 Misc. 510, 511, affd. 265 App. Div. 998, motion for leave to appeal dismissed 290 N. Y. 743). Accordingly, we dissent and vote to reverse the order of the Appellate Term affirming the order and judgment of the Municipal Court, and said order and judgment and to deny plaintiffs motion for summary judgment.

Peck, P. J., Glennon and Cohn, JJ.; concur in decision; Dore, J., dissents and votes to reverse in opinion in which Callahan, J., concurs.

Determination affirmed, with costs and disbursements. No opinion.