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Terrky v. Terrky

Supreme Court, Kings Special Term
Sep 1, 1916
96 Misc. 594 (N.Y. Sup. Ct. 1916)


September, 1916.

Israel M. Lerner, for plaintiff.

No appearance for defendant.

This is an undefended action to annul a marriage, upon the ground of plaintiff's non-age. She was under eighteen years of age at the time of the marriage and has not lived with the defendant since she became eighteen. Before bringing this action, however, she, through her guardian ad litem, brought an action against the defendant for a separation; and the question here is whether the bringing of that action and the prosecution of it to judgment prevents the plaintiff from obtaining the relief here sought.

On the hearing it developed that the action for a separation had been tried two years ago. The judgment roll in that action was not available on the hearing, but it was submitted to the court later. It appears that the separation action was begun before the plaintiff became eighteen, but that it was not tried and the judgment entered until after she had arrived at that age. It further appears that she was a witness on her own behalf and that the defendant since the entry of that judgment has been paying the alimony for which provision was therein made. The plaintiff is now twenty-one years of age.

When the plaintiff became eighteen, she had the right of election, either to confirm the marriage or to disaffirm it. She could then determine to treat it either as a valid, binding contract and obligation, or as a voidable contract and to bring an action for its annulment. But having once made the election, having acted thereon and having taken the benefits thereof, she can not thereafter change her decision and seek to make a contrary election. Herrman v. Herrman, 93 Misc. 315.

Here the plaintiff, after becoming eighteen, prosecuted to judgment her action for a separation. That judgment found that there was a valid marriage existing between the plaintiff and defendant, as contended by her, and it directed the defendant to provide support for his wife, the plaintiff; and this he has done. The plaintiff can not now assert that her marriage was not valid. Its validity has been judicially declared and at a time too after the plaintiff had the right of election. She can not now disaffirm the contract. Goodwin v. Goodwin, 158 A.D. 171, 174, 175. The case cited was one in which the obtaining of a judgment of separation was held to be a bar to an action subsequently brought to annul the marriage. And the general rule is that where the remedies are inconsistent and a choice is once made, the right to follow the other is forever gone. Conrow v. Little, 115 N.Y. 387, 393; Terry v. Munger, 121 1id. 161, 167; Droege v. Ahrens O. Mfg. Co., 163 id. 466, 470; 13 L.R.A. 472, 473, note.

A judgment is a binding adjudication against the party who obtained it, even though as to the other party it may be void for lack of jurisdiction. Starbuck v. Starbuck, 173 N.Y. 503; Matter of Swales, 60 A.D. 599, affd, 172 N.Y. 651; 60 L.R.A. 301, 304, note; 51 L.R.A. (N.S.) 535, 536 note.

Nor does the fact that the plaintiff was an infant at the time of prosecuting to judgment the separation action affect the question. Infants may bind themselves by an election. Big. Estop. 735, and cases cited; 3 Bacon Abr., tit. Election (E.) 315. So an infant, properly represented by a guardian, is estopped by a judgment obtained in the action. Big. Estop. 132, and cases cited.

It follows that the complaint must be dismissed upon the merits.

Ordered accordingly.

Summaries of

Terrky v. Terrky

Supreme Court, Kings Special Term
Sep 1, 1916
96 Misc. 594 (N.Y. Sup. Ct. 1916)
Case details for

Terrky v. Terrky

Case Details

Full title:ROSE TERRKY, an Infant, by FANNY WECHSLER, her Guardian ad Litem…

Court:Supreme Court, Kings Special Term

Date published: Sep 1, 1916


96 Misc. 594 (N.Y. Sup. Ct. 1916)
160 N.Y.S. 1016

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