127 N.Y.S. 476 | N.Y. Sup. Ct. | 1910
After the defendant had married the plaintiff within the State of New York in 1819, they lived together
It is entirely clear under the decisions of New York and of the Pederal courts (Olmsted v. Olmsted, 190 N. Y. 158; Haddock v. Haddock, 201 U. S. 562) that the alleged decree of divorce obtained in Illinois is inoperative upon the rights of this plaintiff, who never submitted herself to the jurisdiction of the foreign tribunal.
It is urged, however, that plaintiff cannot maintain this suit so long after the defendant’s remarriage in 1897. It appears that plaintiff heard rumors of defendant’s remarriage and then wrote a letter to her husband on the subject, which was never answered. She then inquired as to the facts from his brother, who declined to give any information on the subject. Plaintiff was first informed definitely of the second marriage at the time of a foreclosure suit in or about 1908, in which her husband and herself, as well as the second wife, were named as defendants.
Even if the inference can be drawn that the plaintiff heard of the marriage at the time it took place, that does not necessarily establish that she had such knowledge of the adulterous intercourse, which followed and continued down to the •commencement of the action as would bar a recovery. I he
Furthermore, the obligation to institute au action requires that there should he a defendant within the jurisdiction of this court, and it is clear that under the decisions such au action, where the defendant remained without the State, could not he validly begun except upon the chance of finding him within the State for the purpose of personal service.
Therefore, plaintiff was not barred from bringing her action when she did, either by the terms of section 1758 of the Code or (as is also urged on behalf of defendant) by the general Statute of Limitations.
Judgment for plaintiff.