46 Misc. 2d 347 | N.Y. Sup. Ct. | 1965
This action is for a judgment declaring invalid a judgment of a Mexican court divorcing the plaintiff and the defendant Howard E. Chittenden, declaring that the subsequent marriage of the defendants is invalid, and that plaintiff’s marriage to the defendant Howard E. Chittenden is still in full force and effect.
Subsequent to the alleged divorce the defendant Howard E. Chittenden married the defendant Marion Katherine Bagley (Smithwick), (hereafter called Bagley), in Rhode Island. One child has been born to the defendants since their marriage.
The present action was originally commenced against the defendant Howard E. Chittenden only, by personal service of the summons and complaint in the State of Pennsylvania pursuant to section 235 of the Civil Practice Act. A supplemental summons and amended complaint were served upon the defendant Bagley, personally, in the State of Pennsylvania on July 28, 1964 pursuant to CPLR 314.
I find that the purported signature of plaintiff, Jerry Lou Chittenden, appearing on the application is, in fact, not the signature of the plaintiff, and I further find that this plaintiff at no time appeared in the Mexican court either personally or in any other manner. I therefore conclude that service on the defendant, Howard E. Chittenden, was properly made pursuant to sections 232 and 235 of the Civil Practice Act.
Although not raised by the defendants, the court, on examination of the original file in the Monroe County Clerk’s office, has ascertained that proof of service on the defendant Chittenden has not been filed as required by section 235 of the Civil Practice Act, This omission is not jurisdictional and may be corrected. (Winter v. Winter, 256 N. Y. 113, 116; Lambert v. Lambert, 270 N. Y. 422, 427; Ange v. General Crushed Stone Co., 262 App. Div. 553, 554: City Bank Farmers Trust Co. v. Pleasonton, 51 N. Y. S. 2d 672; Molyneaux v. Sevilla, 22 Misc 2d 450; Gordon v. Gordon, 17 Misc 2d 734.)
With respect to the defendant Bagley, the defendants contend that, as against her, the action is in personam and that, not being a domiciliary of this State, she may not be served without the State pursuant to CPLR 314. From the uncontradicted affidavits submitted on the motion, I find that the defendant Bagley, at the time of the commencement of this action, was not
This action insofar as it seeks to declare the Mexican divorce invalid, is a proceeding in rem. “In matrimonial actions the ‘ res ’ is the marital status of a resident of the State, and to the extent that the purpose of the action is to alter or affect that matrimonial status, the action is a ‘ proceeding substantially in rem ’ where ‘ substituted service by publication or in any other authorized form ’ is sufficient notice to answer the require
I conclude that service on the defendant Bagley was properly made pursuant to CPLR 314. It is to be noted that the amendment of section 232 of the Civil Practice Act under which service was made on the defendant Chittenden referred only to an action to declare the nullity of a foreign divorce. By the definition of “matrimonial action” contained in CPLR 105 (subd. [m]), service may be made under CPLR 314 in an action for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, and for a declaration of the validity or nullity of a marriage. My decision is confined to holding that service on both defendants is effective as to that part of the action which asks for judgment declaring the Mexican divorce invalid. I do not undertake to determine at this time whether the additional relief sought, declaring the marriage of the defendants void (Domestic Relations Law, § 140) and the marriage of plaintiff to the defendant Chittenden still valid, may be obtained by service in the manner here effected.
No authority has been brought to my attention indicating a requirement that the child of the alleged marriage between the defendants be made a party to this action, and I see no reason for such requirement.
The motion is denied as to both defendants, without costs.
The order may provide that plaintiff be permitted to file proof of service of the summons and complaint on the defendant Howard E. Chittenden within 10 days after the entry of the order herein and that each defendant may answer within 30 days after service on defendants ’ attorneys of notice that such proof of service had been filed.