130 Misc. 262 | N.Y. Sup. Ct. | 1927
Plaintiff alleging that his'marriage to the defendant was void, because she had a husband living at the time, seeks an annulment. No proof of the plaintiff’s allegations was offered, as the defendant had pleaded a judgment in her favor against the plaintiff granting her .a separation and claimed this was a bar. The judgment in the separation action was entered October 9, 1925. The findings are the usual ones in such cases, including these that the parties were married, and that on September 13, 1924, the husband, without cause, abandoned his wife. The answer in the separation action pleaded as a counterclaim the facts alleged in the complaint in this action and sought an annulment of the marriage. Realizing, however, that such a counterclaim would not he in that action (Civ. Prac. Act, § 1168; Murphy v. Murphy, 194 App. Div. 395; Tavarozzi v. Tavarozzi, 118 Misc. 30), the defendant in the separation action abandoned the counterclaim and no proof concerning it was offered. Is the judgment in the separation action res adjudícala, or do the findings in that action conclusively estop the plaintiff here from pressing his claim?
A judgment is res adjudícala and hence a bar to a second action between the same parties, upon the same cause, if it was rendered
Matters that might be raised by counterclaim are usually not involved in a finding of fact made upon the allegations of the complaint and the general rule is that counterclaims are not lost, although not pleaded or pressed. Where a counterclaim is not necessarily involved in the determination of plaintiff’s claim the defendant may interpose it or withhold it and make it the subject of a separate action at his election. If he fails to interpose it as a counterclaim he is not barred from thereafter asserting it. (Brown v. Gallaudet, 80 N. Y. 413, 417; Rosenberg v. Slotchin, 181 App. Div. 137, 139; Honsinger v. Union Carriage & Gear Co., 175 N. Y. 229; Schenectady Holding Co. v. Ashton, 197 N. Y. Supp. 476, 479; affd., 204 App. Div. 348.) If, however, some fact vital to the counterclaim has been determined adversely to such contention in the first action that finding is controlling and works as an estoppel.
The question, therefore, is, was any finding made or necessarily involved in the separation action which is inconsistent with the basis of plaintiff’s claim here for an annulment?
The essentials of a separation action are the marriage of the parties and acts giving ground for the relief sought. (Townsend v. Van Buskirk, 22 App. Div. 441, 443; Durham v. Durham, 99
In Everitt v. Everitt (206 App. Div. 408) the court stated that it was the rule that neither a defense nor a counterclaim based on the invalidity of the marriage might be interposed in a separation action, and it cited for this statement both the Ostro and Durham cases, among others, although, as has been stated above, the Durham case is not an authority for that statement but holds the exact opposite. The court then held that the invalidity of a marriage was a defense to an action brought by the wife upon an agreement of separation whereby she sought to recover an amount due thereunder and to get specific performance of another provision. This holding seems to be inconsistent with the statement that the same facts would not be a defense in a separation action. The sole consideration for the separation agreement was the marriage of the parties and so I think the court correctly held that the defense that the marriage was void or voidable was good. The same defense, however, should be good in the separation
But even if such a defense may not be pleaded, still it does not follow that the plaintiff here may succeed. The question here does not concern a matter of pleading or practice. The fact is that a judgment of separation has been obtained in which it has been found that the parties are man and wife. Of course if there was no way in which the defendant in a separation action could have raised his contention or could have prevented the plaintiff therein from obtaining judgment it would be a harsh rule that would say that the finding as to marriage thus made was conclusive. But that result does not follow, for even though the defense of the invalidity of the marriage might not be pleaded in the separation action the defendant therein could have applied to the court for a stay of that action pending the trial of his action for an annulment. (Murphy v. Murphy, 194 App. Div. 395.) The opinion in the Murphy case is written by Lattghlin, J., who also wrote in the Ostro case. He evidently recognized that unless the defendant did something to prevent the judgment in the separation action from being entered against him he might be estopped from later questioning the validity of the marriage (see p. 396).
Plaintiff's principal contention seems to be that because he claims the marriage to have been absolutely void and not merely voidable, therefore, a different rule applies. I cannot appreciate this distinction as applied to this situation. The adjudication in the separation action was that the marriage was valid. Whatever the actual fact may be that has been determined. If that finding negatives the existence of facts making the marriage voidable it must just as effectively negative the existence of facts making it void. The question is not what the fact is but what it has been determined to be by the prior judgment. As so found it is conclusive and may not be attacked. The situation is quite analogous to that appearing in Dornfeld v. Dornfeld (200 App. Div. 38). There a wife obtained a judgment of divorce, the findings stating there were two children of the marriage. Later a motion was made to amend the judgment by providing for support for those children. The husband then sought to dispute the legitimacy of one of the children. It was held he might not do this, that their legitimacy was determined by the judgment and could not be presented for further judicial investigation.
The defendant is entitled to judgment dismissing the complaint, with costs.