Rosenstiel v. Rosenstiel

• Decision Date: 18 May 1964
• Citation: 251 N.Y.S.2d 565,43 Misc.2d 462
• Parties: Lewis S. ROSENSTIEL, Plaintiff, v. Susan L. ROSENSTIEL, Defendant.
• Court: New York Supreme Court

Page 565

251 N.Y.S.2d 565

43 Misc.2d 462

Lewis S. ROSENSTIEL, Plaintiff, v. Susan L. ROSENSTIEL, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXII.

May 18, 1964.

Saxe, Bacon & O'Shea and Seligson & Morris, New York City, for plaintiff; Roy M. Cohn, Joel S. Stern and Charles Seligson, New York City, of counsel.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for defendant; Louis Nizer, Walter S. Beck and Herbert N. Bobrow, New York City, of counsel.

HENRY CLAY GREENBERG, Justice.

Plaintiff Lewis S. Rosenstiel has invoked the authority of this court to annul the marriage which he entered into on November 30, 1956, in the City and State of New York, with the defendant Susan L. Rosenstiel. This marriage, plaintiff contends, cannot be afforded the legal aegis of validity as a purported Mexican divorce dissolving defendant's prior marriage to one Felix E. Kaufmann must be rejected as a nullity under the laws of New York. The defendant denies the invalidity of the Mexican divorce and affirmatively urges the complete defense of res judicata predicated upon an 'incidente' proceeding instituted in 1962 in Mexico by one Samuel Goldsmith, who, defendant alleges, was in reality the plaintiff.

The issue, in essence, therefore, is the effect to be accorded the divorce decree of the Mexican court. The resolution of this issue, in its effect on the fortunes of the defendant and its likely application to others similarly situated, requires the court to approach the disposition with caution, and yet with due regard to its duty and the recognition it must give to the public policy of this State. The unfortunate result in relation to the individual defendant must yield to the law of this jurisdiction.

In limine it is well to dispose of certain preliminary matters made necessary by certain rulings during the trial.

1. A motion was made to strike certain testimony of the witness Benjamin Javits on the ground that it was improper when admitted and timely objection was taken by plaintiff, that other testimony was improperly admitted although no objection was taken thereto, and that other testimony which was proper when admitted was subsequently shown to be inadmissible. The court has authority to grant such a motion during, at the time of, and after the trial has been concluded. It would serve no useful purpose to detail this improperly admitted testimony in extenso since the court in the main sustained objection to the testimony of the witness Javits on the ground of attorney-client privilege. Defendant urged that the fact that plaintiff instituted an action against his former attorney, Benjamin Javits, for an accounting and other relief, the privilege was waived for all purposes and for all time. This is not the law (see Matison v. Matison, Sup., 95 N.Y.S.2d 837, affd. 277 App.Div. 770, 97 N.Y.S.2d 550). The exceptions sought to be engrafted upon the rule of attorney-client privilege by the defendant are without legal force and if accepted would in effect destroy this privilege which has long been recognized and accepted in the law.

Matter of Stefano v. C. P. Ward, Inc., 19 A.D.2d 473, 244 N.Y .S.2d 267, asserted by the defendant as completely supporting her position, is not remotely applicable here. In that case there was an issue as to whether a judgment obtained by an injured employee against a third party was really the result of a compromise arrived at without the consent of the employer's insurance carrier. Hearings were held before a referee on the contested issue and the attorneys representing the injured workman and a third party refused to answer questions relating to arrangements which had been made between them leading to the judgment. The court held that such conversations were not privileged. Said the court, at page 475, 244 N.Y.S.2d at page 270:

'We hold merely that the conversations between adverse attorneys at pre-trial proceedings are open to inquiry by the Board where they are pertinent, as they are here, to a substantial right.'

The situation here is opposite. It is not communications between adverse attorneys which are sought to be protected but rather the confidential communications between a client and his attorney. The endeavor by defendant's attorneys to circumvent the rule by attempting in effect to try the issues between plaintiff and his former attorney embraced in the accounting action and thus remove the privileged matter, did not escape the scrutiny of the court.

2. Testimony regarding certain alleged improper acts in the 'Goldsmith incidente' proceedings was not admitted on the ground that it would have no material effect on the outcome of the litigation. This testimony, as urged by the defendant, was sought to be introduced for the purpose of (a) showing a 'consciousness of a weak case' and (b) tainting the credibility of witnesses for the plaintiff herein. Extensive discussion is unnecessary as it is quite obvious that the proposition of law regarding fraudulent practices as espoused by the defendant has no application to the case at bar. This will be discussed more fully in relation to the merits of the defense of res judicata.

3. We come now to the defense of res judicata which was and is vigorously advanced as determinative of the instant litigation. On October 2, 1954, defendant's prior husband, Felix E. Kaufmann, obtained a decree of divorce from her in the First Civil Court of Bravos, Ciudad Juarez, Mexico. In 1962 one Samuel Goldsmith commenced an ex parte 'incidente' proceeding which resulted in the granting of a decree on February 6, 1962, nullifying defendant's 1954 divorce. It is now contended under the defense of res judicata that the aforesaid Samuel Goldsmith was in fact the plaintiff herein, Lewis S. Rosenstiel. This allegation of course is denied by the plaintiff.

On June 7, 1962, when she learned of the nullification decree entered in the First Civil Court of Bravos, defendant Susan Rosenstiel filed a constitutional proceeding known as an 'amparo' in the Mexican Federal Court. In that proceeding defendant claimed that the ex parte nullification order entered in the state court at the behest of Samuel Goldsmith was void, alleging among other things that it was entered without notice to her and in derogation of her rights of due process guaranteed by Mexican federal statutory and constitutional law. That court, on November 27, 1962, refused to grant the 'amparo.' The court ruled that defendant had not instituted that proceeding within the prescribed time. She appealed from this adverse decision of the Second District Court to the Federal Court of Appeals for the Third Circuit, City of Saltillo, State of Coahuila, Mexico. The Federal Court of Appeals reversed the decision of the Second District Court and on May 10, 1963, granted the 'amparo' and simultaneously remanded the file to the court below for appropriate action in accordance with the decision. The Second District Court thereupon, and this appears from the May 28, 1963, decree, notified the state court of the Appellate Division and instructed it to the effect that the state court must incorporate the federal decision in its record.

Thereupon, the state court entered a resolution revoking the Goldsmith ex parte nullification and stated that accordingly, 'the entire proceeding in the divorce proceeding is legal because brought by Mr. Felix Ernest Kaufmann against Mrs. Susan E. Kaufmann as well as a divorce judgment rendered on October 2, 1954, which was declared final on October 6, 1954' remained valid.

Thereafter and on February 4, 1964, the defendant, pursuant to leave granted by the court, served a supplemental answer alleging the defense of res judicata based upon the order entered in the First Civil Court of Bravos, Juarez, State of Chihuahua, Mexico, on May 28, 1963. A motion was made to strike this defense, plaintiff contending that since there had been no decision on the merits as to the validity of invalidity of the 1954 divorce decree, the defense of res judicata was legally insufficient. The court at Special Term (Hellman, J.) denied the motion to dismiss, holding that two issues of fact were involved: (a) was the Goldsmith who instituted the January, 1962 proceeding in reality the plaintiff; (b) was the final determination of the Mexican appellate court in May, 1963 a judicial determination on the merits of the issues raised by Goldsmith in the nullification proceeding or was it, as plaintiff contends, a vacatur based solely on the absence of notice to defendant of the institution of the proceeding so as to render the determination a procedural one only? Expert testimony was produced by the contending parties with respect to Mexican law and the effect of the decree of the Mexican appellate court.

Since the determination of foreign law is for the court, this issue was taken from the jury. The court on this issue concludes as follows: (1) It is elementary that res judicata as a defense may be invoked only where the same parties and issues were before the court and there was a definitive determination of the contested issues on the merits. Citation of authority for this well-recognized principle would be a work of supererogation. It is sufficient to state that where the record is indefinite as to whether the merits bottomed the prior judgment it is not conclusive and hence res judicata as a defense must fall. Moreover, a judgment dismissing an action based upon a technicality is not a judgment upon the merits and hence cannot sustain a defense of res judicata. Based upon the expert testimony in the case and its own exhaustive search of the authorities, the decision of the Saltillo court or the decree entered pursuant to that decision by the First Civil Court of Bravos did not make any finding with respect to the validity of the divorce decree obtained by Felix Kaufmann against the defendant in 1954. All that the Saltillo court did was to reverse the...