193 Misc. 189 | N.Y. Sup. Ct. | 1948
Plaintiff and defendant were married some years after defendant’s former wife had secured a decree of divorce against him in the State of Florida. The complaint alleges that the decree is a nullity since neither the defendant (who appeared by attorney in the afore-mentioned Florida divorce action) nor his former wife had the requisite domicile to confer jurisdiction upon the court which granted the decree. Plaintiff prays for a decree annulling the marriage between the parties.
Defendant has moved for judgment on the pleadings, contending that the complaint is insufficient since the decree of divorce was founded upon the appearance of himself and his former wife and is therefore immune from attack by the plaintiff, purportedly his present spouse.
The weight of authority would appear to lie with these cases rather than with Shea v. Shea (270 App. Div. 527, decided in the Appellate Division, Second Department, two justices dissenting) and Holloway v. Holloway (187 Misc. 388) expounding a contrary view.
The defendant’s motion for judgment on the pleadings is denied.