105 N.Y.S. 917 | N.Y. Sup. Ct. | 1907
The correct answer to the fundamental question of jurisdiction presented upon this motion depends upon the accurate interpretation of section 1763 of the Code of Civil Procedure, applicable to actions for separation, which reads as follows: “ Such an action may be maintained in either of the following cases: 1. Where both parties are residents of the State when the action is commenced. 2. Where the parties were married within the State and the plaintiff is a resident thereof when the action is commenced. 3. Where the parties, having been married without the State, have become residents of the State, and have continued to be residents thereof at least one year, and the plaintiff is such resident when the action is commenced.” It is strenuously insisted on this motion for reargument that the effect of my former opinion is to ignore and overrule appellate court utterance construing the section of the Code under review. Counsel rely upon Hewes v. Hewes, 40 N. Y. St. Repr. 680; 16 N. Y. Supp. 119, which I discussed" in my opinion; Ramsden v. Ramsden, 28 Hun, 285, and Toosey v. Toosey, 14 Daly, 537, as decisive. The Hewes case was brought by the husband. Both parties were married without the State, and' the defendant had never actually resided within the State. The husband contended “ that as the domicile of the wife follows that of the hus
Motion denied, with ten dollars costs.