Lowe v. Lowe

• Decision Date: 03 July 1934
• Citation: 265 N.Y. 197,192 N.E. 291
• Parties: LOWE v. LOWE et al.
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 197

192 N.E. 291

LOWE

v.LOWE et al.

Court of Appeals of New York.

July 3, 1934.

Action by Marie C. Lowe against Henry W. Lowe and another. From an order of the Appellate Division (241 App. Div. 711, 269 N. Y. S. 994), affirming an order of the Special Term, which denied a motion to dismiss the complaint, defendants appeal by permission of the Appellate Division on certified questions.

Order reversed, motion granted, one question answered in the affirmative, and the other not answered.

The following questions were certified:

‘1. Under section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice, should defendants' motion for judgment on the pleadings, dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action for injunctive relief, have been granted?

‘2. Under section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice, after the defendants have admitted to the extent shown by the record plaintiff's right to have a declaratory judgment rendered in her favor, should the defendants' motion for judgment on the pleadings dismissing the complaint have been granted on the ground that the complaint fails to state facts sufficient to constitute a cause of action for the injunctive relief sought therein?’

Appeal from Supreme Court, Appellate Division, First department.

Martin W. Littleton and Andrew E. Stewart, both of New York City, for appellants.

Jeremiah T. Mahoney and John A. Bell, both of New York City, for respondent.

LEHMAN, Judge.

The plaintiff has brought an action for a declaratory judgment that the plaintiff is the lawful wife of the defendant Henry W. Lowe; that a decree of divorce made without jurisdiction in the state of Nevada is void; and that the defendants are not husband and wife. In an action for a declaratory judgment ‘further or consequentialrelief’ may be claimed. Rules Civil Practice, rule 211; Civil Practice Act, § 473. The plaintiff in this action asks as ‘further or consequential relief’ an injunction restraining the defendants from holding themselves out as husband and wife, and restraining the defendant Kathleen Dunning from using the name of Mrs. Lowe and from seeking or using rights or courtesies in any club as the wife of the defendant Lowe.

The defendants moved to dismiss the complaint under rule 112 of the Rules of Civil Practice. Upon the argument of the motion their attorney stated that the defendants admitted that the Nevada decree is void and that the plaintiff is entitled to a declaratory judgment as prayed for in the complaint. After that admission the motion proceeded, without objection, as an attack upon the plaintiff's cause of action for injunctive relief. To that extent the motion to dismiss the complaint must be deemed to have been amended or limited by consent. At Special Term the motion was denied on the ground that ‘whether plaintiff is entitled to the further and consequential relief which she demands cannot be determined on a motion of this nature.’ The Appellate Division by a divided court affirmed the order of Special Term, but granted permission to appeal upon certified questions.

The admitted allegations of the complaint that the Nevada decree of divorce was granted by a court which was without jurisdiction, that thereafter the defendants in the state of Nevada went through a marriage ceremony before a clergyman, and that they are living together and holding themselves out as husband and wife, are sufficient to constitute a cause of action for a judgment which will declare and establish the plaintiff's ‘rights and other legal relations.’ Such a judgment would not carry with it as a legal consequence a right to injunctive relief. In order to establish a right to injunctive relief, the plaintiff must allege and prove in addition that the defendants are infringing upon marital or other rights of the plaintiff which a court of equity will protect by injunctive decree. Baumann v. Baumann, 250 N. Y. 382, 165 N. E. 819.

The decree of divorce granted without jurisdiction in Nevada is here entirely void and without legal consequences. It was merely a step in the consummation of an alleged conspiracy by the defendants to hold themselves out as husband and wife, and thus cause the world to belive that the plaintiff was no longer the wife of the defendant Lowe. It did not itself deprive the plaintiff of any right or cause any injury. Because it gave color of right to an open claim that the plaintiff was no longer the lawful wife of Lowe, it furnishes a ground for the invocation of the court's power to declare the plaintiff's rights to the legal relation of the parties, in order to preclude possible controversy hereafter. Cf. Baumann v. Baumann, supra; Somberg v. Somberg, 263 N. Y. 1, 188 N. E. 137. Such a declaration destroys even the color of right of the defendants to hold themselves out as husband and wife, but itself furnishes no ground for further relief by injunction to operate in the future. The injury which the plaintiff seeks to prevent in the future by further relief in the nature of an injunction is the injury that may be caused by continuance of the defendants' conduct of holding themselves out as husband and wife. All the allegations of the complaint except the admitted allegations of the colorable decree of...