Gonzalez v. Gonzalez
| Decision Date | 29 March 1962 |
| Citation | 34 Misc.2d 193,228 N.Y.S.2d 4 |
| Parties | Lorenzo GONZALEZ, Plaintiff, v. Eileen Donnellan GONZALEZ, Defendant. |
| Court | New York Supreme Court |
Max Fligin, New York City, for plaintiff .
Pinter & Cowan, Lindenhurst, for defendant; Edward M. Pinter, Lindenhurst, of counsel.
In this action tried before the court plaintiff Lorenzo Gonzalez seeks judgment declaring that the marriage entered into between plaintiff and defendant Eileen Donnellan Gonzalez, performed January 25, 1959, be declared null and void.
Defendant in her counterclaim seeks a separation and further demands a money judgment for the humiliation, disgrace and mental anguish suffered by her.
Prior to the marriage into which the plaintiff and defendant entered, plaintiff was married to one Nora Reidy on April 26, 1948. Plaintiff entered into the marriage with this defendant without having the previous marriage dissolved legally. Testimony given at the trial makes it quite clear that the marriage entered into by plaintiff and Nora Reidy on April 26, 1948, was never legally dissolved and that Nora Reidy is still alive. There can be no question that the marriage entered into between plaintiff and defendant on January 25, 1959, was a bigamous marriage. The question before this court now is: 'Can the plaintiff, being the guilty party to a bigamous marriage, maintain an action to void his second marriage?'
A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living and the prior marriage has not been dissolved legally. (Domestic Relations Law, § 6). Section 1134 of the Civil Practice Act states 'An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the former husband or wife.' Neither equity nor estoppel may be considered in determining whether a marriage is void under this section, rendering a marriage absolutely void, if at the time thereof a spouse by a former marriage which has not been annulled or dissolved, is living. (Frelingstad v. Frelingstad, Dom.Rel.Ct., 134 N.Y.S.2d 63.) Accordingly, the marriage between plaintiff and defendant is void and plaintiff is entitled to the declaration of nullity prayed for in his complaint.
Defendant's first affirmative defense and counterclaim, wherein she seeks a separation, must be dismissed as a matter of law . Where there is no marriage, it...
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