Herrington v. Herrington

56 N.Y.2d 580 (1982)

Bertha M. Herrington, Appellant, v. Paul N. Herrington, Respondent.

Court of Appeals of the State of New York.

Argued February 18, 1982.

March 30, 1982.

Gerard Quinn for appellant.

James J. Tarantino, Jr., for respondent.

Concur: Chief Judge COOKE and Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG. Judges JASEN and MEYER concur in result in a concurring memorandum.

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 679).

JASEN and MEYER, JJ. (concurring).

While we concur in the result we do so only because the papers before the court contain nothing to support the statement made in appellant's brief that appellant wife was represented at the time the separation agreement was negotiated by the attorney now representing the respondent husband. If in fact he represented both husband and wife, the case may well be one to which Christian v Christian (42 N.Y.2d 63) would apply. As the Appellate Division, Second Department, stated in Bartlett v Bartlett (84 AD2d 800), "in such a situation, an inference of overreaching on the part of the party who is the prime beneficiary of the assistance of the attorney may be drawn". On the record before the court that issue cannot be reached.

Order affirmed, etc.