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Patino v. Patino

Supreme Court of New York, Appellate Division

April 13, 1954

In the Matter of CRISTINA DE B. PATINO, Respondent,
v.
ANTENOR PATINO, Appellant. CRISTINA DE B. PATINO, Respondent,
v.
ANTENOR PATINO, Appellant.

Page 631

APPEALS from three orders of the Supreme Court at Special Term (AURELIO, J.), entered July 14, 1953, in New York County, confirming a consolidated report made by a referee in two supplementary proceedings and in a newly commenced action. In the latter action, the order denied the motion of defendant, appearing specially, to set aside the service of the summons and complaint. In one of the two supplementary proceedings, the order denied defendant's motion to set aside the service of an order for his examination as judgment debtor and directed him to appear for such examination. In the other supplementary proceeding, the order (a) denied a motion by defendant to set aside a warrant or order, entered November 12, 1952, directing the Sheriff to arrest him as a judgment debtor about to leave the State, and (b) likewise denied his motion to set aside an order, entered November 10, 1952, requiring him to give an undertaking. The appeal is from said two last-mentioned orders also.

COUNSEL

Murray I. Gurfein of counsel (Lee McCanliss with him on the brief; McCanliss & Early, attorneys), for appellant.

John McKim Minton of counsel (Paxton Blair and J. Harlin O'Connell with him on the brief; Patterson, Eagle, Greenough & Day, attorneys), for respondent.

Page 632

BREITEL, J.

This is a consolidated appeal from three orders which, among other things, denied motions to vacate (1) an order of arrest in supplementary proceedings, (2) a subpena in supplementary proceedings, and (3) the service of a summons and complaint in a plenary action. The parties are husband and wife, nationals of Bolivia, who have been litigating with one another in three continents. Both are non-residents of the State, although there had been a time during the late war when they had resided here. The husband resides in France. The wife still has her sojourn here.

The supplementary proceedings relate to judgments aggregating $269,753.09. They were recovered by the wife against the husband in actions under a separation agreement. The present applications to vacate process were made by the husband. A bond for $255,000 has been posted by the husband to secure his appearance.

The question in the case is whether the arrest of and the service of process made upon the husband while he was temporarily in the United States was proper, he having entered New York under an agreement with his wife referred to as an 'armistice'. The background for the arrangement is the energetic prosecution of litigation between the two in France, Spain, Bolivia, England and New York State. In the foreign litigation the husband has by and large been successful. In the New York litigation the wife has been successful.

Just prior to the making of the agreement for the 'armistice' the husband, who is a member of a well-known Bolivian family controlling tin mines in that country, was anxious to come to New York City for purposes connected with the threatened nationalization of tin mines in Bolivia. It was the husband who sought the agreement for his visit to New York City with an immunity from service of papers. The negotiations were had between the respective attorneys for the couple, and the arrangement was for him to come to New York City for ten days 'between two boats'. In connection with his stay he was not only to handle his business arrangements but also to seek an agreement with his wife for the settlement of their difficulties.

In our view of the case we do not believe it necessary to discuss the events that ensued in close detail. In broad outline the following occurred: The husband arrived in New York City on October 21, 1952, and between October 21st and October 27th there were three meetings between the couple. On October

Page 633

27th the husband made an offer which the Referee, at Special Term, has found to have been made in bad faith. The finding of bad faith was related to the making of the request for the 'armistice' and 'in carrying out its conditions'. It was based upon the Referee's view that in the light of the circumstances of the parties the offer by the husband was an unreasonably low one which was not followed by any better offer. On October 28th the husband's lawyer was telephoned and the meeting for the following day cancelled. On the afternoon of October 29th the wife's lawyer telephoned the husband's lawyer, saying that the offer had been made in bad faith and that the negotiations were terminated. Nothing was said about the 'armistice'. On October 30th, nine days after the husband's entry into New York City, he telephoned his wife to say goodbye. The following day, which was the tenth day, two hours prior to the husband's contemplated departure by plane for Paris, and two hours after an exactly measured ten days from the time the husband's boat had docked, he was arrested and served with the process which are the subject of these appeals.

The Referee recommended the denial of the motions to vacate because of the husband's bad faith in complying with the 'armistice' agreement. That recommendation was followed and the case is before this court on ...


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