Brandstadter v. Brandstadter

• Decision Date: 02 November 1959
• Citation: 193 N.Y.S.2d 687
• Parties: William August BRANDSTADTER v. Marian Ann BRANDSTADTER, etc.
• Court: New York Supreme Court

Page 687

193 N.Y.S.2d 687

William August BRANDSTADTER v. Marian Ann BRANDSTADTER, etc.

Supreme Court, Special Term, Kings County, Part V.

Nov. 2, 1959.

Arnold S. Greene, New York City, for plaintiff.

Lewis & Lewis, Brooklyn, for defendant.

ANTHONY J. DI GIOVANNA, Justice.

An action has been commenced for annulment of a marriage upon the claim that at the time the parties were married on November 16, 1946, the defendant was still married to another. The documentary proof annexed to the papers in opposition and in support of plaintiff's motion for summary judgment include a deposition taken of the alleged first husband in a prior action of annulment which was discontinued without prejudice. That deposition proves the existence of the prior marriage on the date of the marriage between the parties in the present action. The defendant herein does not attack the documentary proof but claims that by virtue of the conduct of the plaintiff he is estopped from claiming the invalidity of the present marriage. Such defense is, of course, without merit; one is never estopped from claiming the invalidity of a void marriage. The amended Rule 113, however, restricts summary judgment in matrimonial actions in the following manner in paragraph fourth:

'4. In a matrimonial action, to wit, an action or counterclaim to annul a marriage * * * or for a judicial determination affecting the marital status, after issue has been joined, a motor for summary judgment may be made only on the basis of documentary evidence or official records which establish a defense to the action or counterclaim.'

Peculiarly so, relief by summary judgment is not made available to the plaintiff so that an affirmative judgment of annulment by the granting of summary judgment is not available to a plaintiff. In a case such as is now under consideration there is not the slightest probability that defendant can prevail. Nevertheless, summary judgment cannot be granted to the plaintiff. Section 1142 grants to a party the absolute right to a jury trial in an action for annulment. Section 1143 prevents the entry of a judgment of annulment 'without proof of the facts upon which the allegation of nullity is founded.' Satisfactory evidence of the facts must be produced. Rule 283 of the Rules of Civil Practice prevent the granting of a judgment of annulment where a default has occurred without a hearing of the cause. It prevents the granting of such judgment even on consent. Consequently that...