Hersh v. Hersh
| Decision Date | 08 January 1959 |
| Citation | 156 N.E.2d 456,182 N.Y.S.2d 827,5 N.Y.2d 878 |
| Parties | , 156 N.E.2d 456 Anne HERSH, Appellant, v. Herbert HERSH, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 5 A.D.2d 874, 171 N.Y.S.2d 450.
Wife brought action against husband for judgment declaring invalid a Mexican divorce decree obtained by him, and that she was his lawful wife, and for separation on grounds of cruelty and abandonment, and for other relief.
The husband appealed from so much of the judgment entered after trial before F. E. Johnson, Official Referee, as granted the wife a separation on ground of cruel and inhuman treatment, awarded the wife custody of their child with rights of visitation to husband, and directed the husband to make payments of alimony and counsel fee.
The Appellate Division modified the judgment on the law and the facts by striking therefrom specified ordering paragraphs, affirmed the judgment, as so modified, and held that since relief had been denied in previous action, in which both parties had sought a separation, and since they had lived apart by mutual consent for several years, mere fact that husband obtained a Mexican divorce decree did not constitute such cruel and inhuman treatment as would entitle the wife to a judgment of separation. Wenzel J., dissented.
The wife appealed to the Court of Appeals, and motion was made in the Court of Appeals to have the appeal heard on seven copies of the record before the Appellate Division.
The Court of Appeals, 4 N.Y.2d 904, 174 N.Y.S.2d 652, granted motion to have appeal heard on seven copies of the record before the Appellate Division.
The husband contended in the Court of Appeals that evidence could not support a finding that husband was guilty of cruelty, which might be the basis of a decree of separation against him, and that wife had no standing to maintain the action for separation because she had been voluntarily separated from husband, and that separation was granted on charges not set forth in wife's complaint and therefore was improper.
Leon B. Ginsburg, New York City, for respondent.
Judgment affirmed, without costs.
All concur.
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Camp v. Camp
...marriage exists and makes unnecessary a declaratory judgment. Hersh v. Hersh, 5 A.D.2d 874, 171 N.Y.S.2d 450, affirmed w. o. 5 N.Y.2d 878, 182 N.Y.S.2d 827, establishes that the obtaining of an ex parte foreign divorce is not cruelty, and where the parties have previously been living apart ......
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Estate of Hersh, Matter of
...v. Hersh, 5 A.D. 874, 171 N.Y.S.2d 450 (App.Div.1958). This was affirmed by the Court of Appeals in 1959. Hersh v. Hersh, 5 N.Y.2d 878, 156 N.E.2d 456, 182 N.Y.S. 827 (Ct.App.1959). Since 1958, when the New York court struck the support orders, no proceeding was brought for the support of a......
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Stampler v. Stampler
...obtained would not entitle the plaintiff to a judgment of separation (Hersh v. Hersh, 5 A.D.2d 874, 171 N.Y.S.2d 450, affirmed 5 N.Y.2d 878, 182 N.Y.S.2d 827). The movant urges that on similar facts a declaratory judgment was refused in Krakower v. Krakower, 264 App.Div. 912, 35 N.Y.S.2d 90......
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