Flood v. Thiesing
| Decision Date | 18 November 1948 |
| Citation | 298 N.Y. 700,82 N.E.2d 790 |
| Parties | Ortrud Barbara Thiesing FLOOD, Appellant, v. Theodore H. THIESING, Respondent, et al., Defendant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department, 273 App.Div. 548, 78 N.Y.S.2d 453.
Action by Ortrud Barbara Thiesing Flood against Theodore H. Thiesing and Edmund Ruffin Beckwith to recover two installments, totalling $7,500, alleged to be due and owing to the plaintiff, the former wife of the defendant Thiesing, under the terms of a so-called separation agreement executed on June 26, 1946, and to foreclose a deed of trust, under which the defendant Beckwith was trustee, executed simultaneously with the separation agreement and as security for the payment of $25,000 payable to the plaintiff thereunder.
The answer of the defendant Thiesing by way of an affirmative defense and counterclaim in substance alleged that the so-called separation agreement, and the deed of trust executed in connection therewith, were made pursuant to a previous understanding and agreement between the parties that the defendant Thiesing would aid the plaintiff financially and otherwise in obtaining a divorce from him in the State of Nevada, so that she could marry another man and that therefore the agreement and deed of trust were void because contrary to and in violation of the laws and public policy of the State of New York. The plaintiff did in fact obtain a divorce in Nevada but in compliance with a request of the plaintiff, the court made no orders concerning matters embraced within the separation agreement.
The Special Term granted plaintiff's motion for judgment on the pleadings and dismissed the answer and counterclaim on the ground that the issues raised thereby had been conclusively determined against the defendant Thiesing by the decree of divorce and that the defendant was estopped from relitigating such issues. The order and judgment of the Special Term were reversed by the Appellate Division, 273 App.Div. 548, 78 N.Y.S.2d 453, with the statement that under the circumstances the Nevada divorce decree did not estop the defendant Thiesing from attacking the agreement. Motion for leave to appeal to the Court of Appeals having been granted by the Appellate Division, 274 App.Div. 763, 80 N.Y.S.2d 725, the plaintiff appeals.
The following questions were certified:
‘(1) Upon the record herein is the defendant Theodore H. Thiesing, as a matter of law, estopped by reason...
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Juliette S. v. William S.
...657, 345 N.Y.S.2d 906 (Sup.Ct., Nassau Cnty.); compare Flood v. Thiesing, 273 App.Div. 548, 78 N.Y.S.2d 453 (1st Dept.), aff'd 298 N.Y. 700, 82 N.E.2d 790 (Nevada decree). Thus, the Rehill-Nichols principle does not compel the conclusion that the instant Mexican decree must be deemed to inc......
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Fitzgerald v. Morgenstern
...279 A.D. 122, 108 N.Y.S.2d 227, aff'd 304 N.Y. 889, 110 N.E.2d 501; Schacht v. Schacht, 295 N.Y. 439, 68 N.E.2d 433.) Flood v. Thiesing, 298 N.Y. 700, 82 N.E.2d 790, cited by defendant is not to the contrary, the agreement not having been incorporated in the foreign decree. (See Hughes v. H......
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Hughes v. Hughes
...power and jurisdiction of the courts of this State to adjudicate its validity and the rights and obligations thereunder. Flood v. Thiesing, 298 N.Y. 700, 82 N.E.2d 790. In any event, we are not here concerned with an attempt to invalidate an agreement adjudged valid by the judgment of a sis......
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Gillan v. Gillan
...New York and Pennsylvania alike permit an attack[236 Pa.Super. 154] on the agreement based upon collusion. See Flood v. Theising, 298 N.Y. 700, 82 N.E.2d 790 (1948); McDonald v. McDonald, 228 App.Div. 341, 239 N.Y.S. 533 (1st Dep't 1930); Kilborn v. Field, supra; Mathiot's Estate, 243 Pa. 3......