Opinion
10-31-1950
Florence K. Russell, Plaintiff, v. Arthur F. Russell, Defendant.
Louis Lindauer for plaintiff. Bernard H. Sandler for defendant. DI GIOVANNA, J. Motion for counsel fee is granted to the extent that defendant is directed to pay to plaintiff the sum of $1,000 as counsel fee, payable $600 within ten days of service of a copy of the order to be entered hereon and the balance on or before the date of trial. If this action is disposed of before a trial of the issues then the entire counsel fee shall be $600. Defendant's contention that this court does not recognize the sufficiency of a complaint seeking a declaratory judgment annuling a divorce procured in a foreign jurisdiction without personal service upon the wife, is without foundation. The case of Goldstein v. Goldstein (283 N.Y. 146) involved an application for an injunction to restrain defendant from prosecuting an action for divorce in a Florida court. In dismissing the complaint the court said that no damage had as yet been done. In the case at issue, the action of the husband has resulted in a final judgment which in and of itself does injury to the plaintiff. The case of Hollister v. Hollister (288 N.Y. 528) does not determine the law applicable in this case. Therein the Court of Appeals struck out a declaratory judgment after sustaining a judgment of separation. Implicit in the judgment of separation was a finding of a valid existing marriage between the parties. The need for a declaratory judgment was simply not there and for that reason it was stricken. The Legislature of this State recognized the existence of actions declaring the nullity of a judgment obtained in another jurisdiction by enacting section 1169-a of the Civil Practice Act and provided therein for the payment of counsel fees to enable a wife to maintain such action. Motion to dismiss complaint is denied (see Muscillo v. Muscillo, N. Y. L. J., Oct. 26, 1950, p. 956, col. 1 [Bronx Co., HAMMER, J.]). Settle order on notice.