273 N.Y. 157 | NY | 1937
This is an action by a wife for a separation from her husband. He demands a judgment of divorce on a counterclaim founded upon an allegation of adultery which is traversed by her reply. On the trial she put in evidence a decree of divorce obtained by him a few months before in the State of Nevada. It was admitted that the Nevada court was without jurisdiction either of the cause or of the person of the wife and that its judgment had no force in this State. There had been no subsequent marriage of either party.
In that condition of the record, the husband's present counterclaim for a divorce was dismissed, "because by reason of the action he started in Nevada, as far as he is concerned, he has no wife." This order of the Trial Term was reversed by the Appellate Division. A majority of the justices thought that any estoppel against the husband on account of his Nevada decree was waived by the wife when she commenced this separation action. There were two dissents on the ground that, while adultery by the wife would here be a defense, the husband is precluded by his proceedings in Nevada from seeking now an affirmative judgment dissolving the marriage of the parties.
Our conclusion is that the award of the Nevada decree to the husband should have no effect upon the right of either party to a full adjudication in this action upon the conceded fact of their existing marital status.
This is not a case in which one spouse, after having secured a foreign divorce decree not binding in this State on the other, attempts thereafter to assert in our courts a private claim or demand arising out of their marriage. There are situations in which such a private suit will be *159
barred by the fact of the foreign decree. Thus in Starbuck v.Starbuck (
The present case involves a controversy essentially different in character. Here the court was invoked to pronounce judgment directly upon the marital status — a relationship which no stipulation or conduct of the parties could alter (Domestic Relations Law [Cons. Laws, ch. 14], § 51. See Fearon v.Treanor,
The order of the Appellate Division should be affirmed, without costs, and the question certified answered in the negative.
CRANE, Ch. J., O'BRIEN, HUBBS and RIPPEY, JJ., concur; LEHMAN and FINCH, JJ., taking no part.
Order affirmed, etc. *160