Opinion
Submitted December 5, 1951
Decided March 13, 1952
Appeal from the Supreme Court, Appellate Division, First Department, EDER, J.
William A. Hyman and Harold W. Hayman for appellant. Alexander J. Lekus for respondent.
The plaintiff is the wife of the defendant. They were married in this State in 1913. In 1948, she brought in the Supreme Court of this State an action against him for a separation. During the trial of that action, they entered into a separation agreement whereby the action was settled and discontinued and he undertook to pay to her the sum of $10,000 and additional weekly payments of $110 for her support.
In February, 1951, he began a suit against her in the Circuit Court of Dade County, Florida, for a divorce, asserting that he had been an actual bona fide resident of that county for a period of more than ninety days immediately preceding the filing there of his bill of complaint against her. Copies of the papers in that action were received by her through the mails on March 2, 1951.
She then commenced in the New York Supreme Court this action against him in which she demands (1) a judgment permanently enjoining prosecution of his Florida divorce suit, and (2) an order also enjoining his prosecution thereof temporarily and until the New York Supreme Court in this action rules upon her right to a permanent injunction. Thereupon he made a cross motion at a Special Term of the Supreme Court of this State for an order dismissing her complaint in this action as being insufficient in law on the face thereof (see N.Y. Rules Civ. Prac., rule 106).
These cross motions resulted in two orders of Special Term. One denied the motion of the plaintiff wife for a temporary injunction and the other granted the motion of the defendant husband for dismissal of her complaint herein. She challenged each of these orders by a separate appeal to the Appellate Division but brought on for argument there only the appeal from the order that had denied her motion for a temporary injunction. By a vote of three to two, the Appellate Division reversed that order on the law and the facts and granted the motion of the plaintiff wife for an injunction pending trial of this action.
Upon a motion subsequently made by counsel for the defendant husband, the Appellate Division granted him leave to appeal to this court upon the following questions certified:
"1. Was there any basis in the record for the exercise of discretion by the Appellate Division in issuing a temporary injunction?
"2. Even if the complaint had not been dismissed, was there any basis in the record for the exercise of discretion by the Appellate Division in issuing a temporary injunction?
"3. Did the Appellate Division have the power to reverse the order in this case denying plaintiff's motion for an injunction pendente lite and to grant the motion?"
The complaint of the plaintiff wife showed her to be entitled to a permanent injunction against prosecution by the defendant husband of his Florida divorce suit. Hence the Appellate Division had power in its discretion to issue its order temporarily enjoining his prosecution of that suit (Civ. Prac. Act, § 877; Garvin v. Garvin, 302 N.Y. 96).
The order should be affirmed, with costs. The first and third questions certified is not answered in the affirmative. The second question certified is not answered, because no judgment directing dismissal of the complaint appears in the record (see Civ. Prac. Act, § 472; Bannon v. Bannon, 270 N.Y. 484; Matter of Westberg, 279 N.Y. 316, 319).
LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Order affirmed, etc. [See 303 N.Y. 1008.]