Fischer v. Fischer

CourtNew York Court of Appeals
Writing for the CourtO'BRIEN
Citation254 N.Y. 463,173 N.E. 680
Decision Date18 November 1930
PartiesFISCHER v. FISCHER.

254 N.Y. 463
173 N.E. 680

FISCHER
v.
FISCHER.

Court of Appeals of New York.

Nov. 18, 1930.


Action by Ida Fischer against Arthur Fischer. From a judgment of the Appellate Division (228 App. Div. 771, 239 N. Y. S. 877) affirming a judgment for a separation and alimony, defendant appeals.

Reversed, and complaint dismissed.

[173 N.E. 681]


[254 N.Y. 463]Appeal from Supreme Court, Appellate Division, First department.

I. Maurice Wormser, Robert H. Elder and Abraham N. Davis, all of New York City, for appellant.

[254 N.Y. 464]M. Michael Edelstein, of New York City, for respondent.


[254 N.Y. 465]O'BRIEN, J.

At New York City, plaintiff and Bernard Dolinsky, both domiciled and resident in this state, intermarried. Always since that time she has remained domiciled and resident in New York. For the sole purpose of instituting an action for divorce against Dolinsky on grounds other than adultery, she went to Nevada. She intended, after the rendition of a decree, immediately to return here and consequently she never became a resident of that state. She temporarily lived there merely to give some appearance of colorable right to maintain her action. In her suit in the district court at Reno based upon cruelty and neglect, Dolinsky was personally served at New York, but he did not appear nor was he represented by counsel. A decree purporting to dissolve the marriage was entered in Nevada and [254 N.Y. 466]plaintiff returned to New York. After the expiration of five months and during the lifetime of Dolinsky, she went through the form of a marriage ceremony in New Jersey with defendant Fischer, who was and is domiciled and resident in New York. They lived together less than three months. In the present action, based upon descertion, she has recovered judgment against him for separation and alimony which has been unanimously affirmed. Appeal is by permission of this court.

The invalidity of the Nevada decree is not open to doubt in this state (Atherton v. Atherton, 181 U. S. 155, 21 S. Ct. 544, 45 L. Ed. 794;Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1;Olmsted v. Olmsted, 216 U. S. 386, 30 S. Ct. 292,54 L. Ed. 930,25 L. R. A. [N. S.] 1292;Baumann v. Baumann, 250 N. Y. 382, 165 N. E. 819; Bishop on Marriage, Divorce and Separation, vol. 2, § 102), and the courts below have not otherwise decided. The theory upon which plaintiff has succeeded rests upon a supposed resemblance in principle to Kaufman v. Kaufman, 177 App. Div. 162, 163 N....

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37 practice notes
  • Wood v. Wood
    • United States
    • United States State Supreme Court (New York)
    • August 12, 1963
    ...on property rights which I shall discuss later. As the plaintiff's right to a separation rests upon a valid marriage (Fischer v. Fischer, 254 N.Y. 463, 173 N.E. 680), I turn to the cause of action for annulment. The parties were married in France in 1959 and again in New York, in 1960. But ......
  • Hamm v. Hamm
    • United States
    • Supreme Court of Tennessee
    • May 2, 1947
    ...situation in the state of New York is summed up as follows: "All the cited cases divide themselves into two categories. Fisher v. Fisher [254 N.Y. 463, 173 N.E. 680], Lefferts v. Lefferts, [263 N.Y. 131, 188 N.E. 279], Stevens v. Stevens, [273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016], Davis ......
  • Bergeron v. Bergeron
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 15, 1934
    ...263 N. Y. 131, 188 N. E. 279. See Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1;Fischer v. Fischer, 254 N. Y. 463, 173 N. E. 680. There was no attempt to give any notice to the petitioner of the pendency of the divorce proceeding in Mexico against him. So fa......
  • Saul v. Saul, No. 7246.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 21, 1941
    ...of this court therein cited and discussed. 14 Smith v. Foto, 1938, 285 Mich. 361, 280 N.W. 790, 120 A.L.R. 801; Fischer v. Fischer, 1930, 254 N.Y. 463, 173 N.E. 680; Kiessenbeck v. Kiessenbeck, 1933, 145 Or. 82, 26 P.2d 58. See, also, Simmons v. Simmons, 1927, 57 App.D.C. 216, 19 F.2d 690, ......
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37 cases
  • Wood v. Wood
    • United States
    • United States State Supreme Court (New York)
    • August 12, 1963
    ...on property rights which I shall discuss later. As the plaintiff's right to a separation rests upon a valid marriage (Fischer v. Fischer, 254 N.Y. 463, 173 N.E. 680), I turn to the cause of action for annulment. The parties were married in France in 1959 and again in New York, in 1960. But ......
  • Hamm v. Hamm
    • United States
    • Supreme Court of Tennessee
    • May 2, 1947
    ...situation in the state of New York is summed up as follows: "All the cited cases divide themselves into two categories. Fisher v. Fisher [254 N.Y. 463, 173 N.E. 680], Lefferts v. Lefferts, [263 N.Y. 131, 188 N.E. 279], Stevens v. Stevens, [273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016], Davis ......
  • Bergeron v. Bergeron
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 15, 1934
    ...263 N. Y. 131, 188 N. E. 279. See Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1;Fischer v. Fischer, 254 N. Y. 463, 173 N. E. 680. There was no attempt to give any notice to the petitioner of the pendency of the divorce proceeding in Mexico against him. So fa......
  • Saul v. Saul, No. 7246.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 21, 1941
    ...of this court therein cited and discussed. 14 Smith v. Foto, 1938, 285 Mich. 361, 280 N.W. 790, 120 A.L.R. 801; Fischer v. Fischer, 1930, 254 N.Y. 463, 173 N.E. 680; Kiessenbeck v. Kiessenbeck, 1933, 145 Or. 82, 26 P.2d 58. See, also, Simmons v. Simmons, 1927, 57 App.D.C. 216, 19 F.2d 690, ......
  • Request a trial to view additional results

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