Edell v. Edell

• Decision Date: 26 February 1957
• Parties: William J. EDELL, Plaintiff, v. Shirley M. EDELL, Defendant.
• Court: New York Supreme Court

Page 855

159 N.Y.S.2d 855

6 Misc.2d 631

William J. EDELL, Plaintiff, v. Shirley M. EDELL, Defendant.

Supreme Court, Monroe County.

Feb. 26, 1957.

Earl F. Case, Rochester, for plaintiff. Culley, Corbett & Tanenbaum, Rochester, Burton D. Tanenbaum, Rochester, of counsel, for defendant.

GOLDMAN, Justice.

Plaintiff William J. Edell commenced an action for divorce against the defendant Shirley M. Edell on September 30, 1950. Defendant entered a general denial of alleged acts of adultery and counterclaimed for a separation. On January 24, 1951, an order was made granting defendant alimony and counsel fees. Thereafter plaintiff went to Florida and moved to discontinue this action. Justice Henry by order dated August 16, 1951, denied plaintiff's motion to discontinue. Plaintiff then instituted an action for divorce in the State of Florida. By order entered January 11, 1952, Justice O'Brien 'restrained plaintiff and his attorneys, during the pendency of this action, from prosecuting a divorce action in Florida or in any other State, and from using in this action any decree granted in Florida or in any other State during the pendency of this action.' Edell v. Edell, 284 App.Div. 758, at page 759, 134 N.Y.S.2d 758.

An appeal by the plaintiff to the appellate Division of the Supreme Court, Fourth Department, resulted in the modification of the restraining order by striking from it the provision that plaintiff was enjoined from using in this action any divorce granted in the State of Florida during the pendency of this action, and affirmance of the remainder of the order. The Appellate Division in Edell v. Edell, supra, 284 App.Div. at page 759, 134 N.Y.S.2d at page 759, stated:

'There is no doubt that part of the order restraining the plaintiff from taking further steps to obtain a foreign divorce is proper. Garvin v. Garvin, 302 N.Y. 96, 96 N.E.2d 721. Beyond that, the injunction anticipates the future conduct of the plaintiff. Although a court does not anticipate its injunction order will be flouted, and should never suggest it, the situation may arise as that before the court in Palmer v. Palmer, 184 Misc. 291, 53 N.Y.S.2d 784. At that time the consequences of a violation of the restraining order should be determined.'

The order as modified still enjoined the plaintiff from proceeding with the divorce in Florida. Thereafter plaintiff prosecuted his action to a final decree in Florida, in violation of the restraining order. Palmer v. Palmer, 184 Misc. 291, 294, 53 N.Y.S.2d 784, 786, cited by the Appellate Division and by the attorneys in opposition to this motion, is sound precedent for denying the plaintiff's motion to discontinue this pending action. To grant relief requested by plaintiff in this motion would be to reward him for securing the Florida divorce...