20 Misc. 2d 16 | N.Y. Sup. Ct. | 1951
Action to annul marriage.
The plaintiff herein had previously been married to one Catherine De Santis. On March 1, 1947, the latter recovered a final judgment of divorce in this State against the plaintiff herein on the ground of adultery. Less than three years later, viz., on December 28,1949, and without having obtained judicial
The foregoing facts obviously disclose that the plaintiff does not come into court with clean hands. That quality is not a sine qua non herein for the reason that in the very recent case of Landsman v. Landsman (302 N. Y. 45, 48) which involved a very similar situation, the Court of Appeals stated unequivocally that “ the plaintiff was free to bring this annulment action though he did not come to the court with clean hands ” and, further, that since the marriage was void from its inception, as in the case at bar, ‘ ‘ it gave neither scope for recrimination nor room for any counteractive estoppel.”
The defendant relies heavily on Krause v. Krause (282 N. Y. 355). That case is not applicable here. In later decisions the Court of Appeals seems to have limited its decision in the Krause case to those instances where a person has obtained a matrimonial decree from the courts of a sister State and then subsequently the procurer of such decree attempts to attack its validity collaterally in the courts of this State. (See Caldwell v. Caldwell, 298 N. Y. 146; Querze v. Querze, 290 N. Y. 13.) In such situations the rule of quasi-estoppel will be applied under the decision in the Krause case and the procurer of the foreign divorce will not be heard to impeach it. The case at bar, however, does not involve any collateral attack upon a foreign decree of divorce and hence the Krause case is inapplicable.
The plaintiff’s marriage to the defendant herein is clearly bigamous and void ab initio without any formal decree of the court declaring it a nullity. (Domestic Relations Law, § 6, subd. 1; § 8; Beaudoin v. Beaudoin, 270 App. Div. 631; Heidig v. Heidig, 6 N. Y. S. 2d 405; Matter of Erlanger, 145 Misc. 1.) The Legislature, however, has authorized the court in the interest of the public to enter a decree declaring a void marriage to be such (Civ. Prac. Act, § 1134). The question here is
Prior to the institution of this action the Domestic Relations Court had made an order directing the plaintiff herein to pay the defendant herein thq sum of $10 per week for support. The defendant contends that in making such order the Domestic Relations Court necessarily determined that the plaintiff and defendant were legally married and that this court is bound by that determination. This contention is without merit. The determination by that court regarding an existing marriage was merely incidental to the exercise of its limited jurisdiction to compel the support of a wife by a husband and is not binding in an action in the Supreme Court between the same parties in which an adjudication of the marital status is directly involved. (Loomis v. Loomis, 288 N. Y. 222; Caldwell v. Caldwell, 298 N. Y. 146, supra.)
The court reluctantly concludes that the plaintiff is entitled to a judgment of annulment against the defendant. The plaintiff is directed to pay the defendant alimony in the amount of $11 per week. (Civ. Prac. Act, § 1140-a; Johnson v. Johnson, 295 N. Y. 477.)
Settle judgment on notice.