190 Misc. 480 | N.Y. Sup. Ct. | 1947
In an action for divorce defendant wife moves for an order (1) restoring this case to the trial calendar from the military suspense calendar; (2) for temporary alimony for herself; (3) for temporary support for her children; (4) for counsel fees in the action; (5) for an order enjoining plaintiff from procuring a foreign divorce; (6) for an order of arrest, and (7) for counsel fees for this application.
Plaintiff consents that the case be restored to the trial calendar and that suitable alimony and counsel fees be fixed commensurate with his income but opposes the application for an injunction and for an order of arrest.
Injunctions have been granted restraining residents from procuring divorce decrees in other States (Palmer v. Palmer, 50 N. Y. S. 2d 329, affd. 268 App. Div. 1010; Selkowitz v. Selkowitz, 179 Misc. 608). Plaintiff’s objection, however, is that he is not a resident of New York, and he argues that he
Ordinarily this court would hesitate to restrain a nonresident, even though personally served with process in New York, from prosecuting" any action in the State where he unquestionably resides. But in this case the plaintiff voluntarily invoked the jurisdiction of the New York courts by commencing this action. He should not be permitted to nullify any judgment defendant may obtain on her counterclaim by now instituting and simultaneously maintaining another action in another State. Accordingly, the motion for an injunction will he granted. •
No justification has been shown for an order of arrest, and, accordingly, in the discretion of the court, that branch of the motion will be denied.
A previous motion for alimony and counsel fees was made in 1943. The question of counsel fees was left to the trial court for determination. Alimony was denied at that time because the plaintiff was then in the military service and had made an allotment to the defendant, who was also employed. The allotment has now, of course, ceased and plaintiff asks the court to award temporary alimony and counsel fees “commensurate
Settle order.