Felberbaum v. Felberbaum, 150 N.Y.S. 907

Felberbaum v. Felberbaum

150 N.Y.S. 907 | N.Y. App. Term. | 1915

GUY, J.

Plaintiff sues to recover unpaid installments, amounting to $115, alleged to be due under a separation agreement entered into between plaintiff and defendant on April 23, 1913, whereby the defendant agreed to pay plaintiff “during her coverture” the sum of $5 per week. It is admitted that plaintiff on January 26, 1914, obtained a decree of divorce from defendant in the state of Nevada; the defendant not appearing in said action and not having been personally served, and defendant being at that time a resident of the state of New York.

*908There is no doubt that, though the decree of divorce may be valid and binding in Nevada, it might have been successfully questioned by or on behalf of the defendant here, either directly or collaterally. Berney v. Adriance, 157 App. Div. 628, 631, 142 N. Y. Supp. 748. But defendant does not question it; on the contrary, he ratifies it. Can plaintiff, therefore, be heard to allege the invalidity of the decree which she procured to be entered in her own favor, notwithstanding her former husband’s ratification. In Starbuck v. Starbuck, 173 N. Y. 503, 506, 507, 66 N. E. 193, 93 Am. St. Rep. 631, it was held that a wife who had procured a Massachusetts decree of divorce, after service by publication only upon a nonresident husband, could not be heard to impeach the validity of her own decree in an action for dower in lands purchased by the divorced husband after the decree. This case was followed and approved in Van Blaricum v. Larson, 205 N. Y. 355, 360, 98 N. E. 488, 41 L. R. A. (N. S.) 219, Ann. Cas. 1913E, 553. Where a wife obtained an absolute divorce in Illinois for intoxication, upon service by publication only upon a nonresident husband, married another man, and lived with him until her first husband’s death, it was held that she could not be heard to assert that she is his widow, and as such entitled to administer upon his estate. In re Swales, 60 App. Div. 599, 602, 603, 70 N. Y. Supp. 220, affirmed on opinion below 172 N. Y. 651, 65 N. E. 1122. In Buxbaum v. Mason, 48 Misc. Rep. 396, 397, 95 N. Y. Supp. 539, this court held that a foreign divorce obtained by a wife fixed her status, unless the husband questioned it. The Municipal Court had jurisdiction, but no cause of action was shown.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.