Schwartz v. Schwartz

• Decision Date: 03 August 1961
• Citation: 219 N.Y.S.2d 751
• Parties: Meyer SCHWARTZ, Plaintiff, v. AL SCHWARTZ, as executor of the estate of Rubin Schwartz, deceased, Sophie Schwartz, Lena Schwartz, Millicent R. Shelden, Stanley B. Schwartz and Jaimie Schwartz, Defendants.
• Court: New York Supreme Court

Page 751

219 N.Y.S.2d 751

Meyer SCHWARTZ, Plaintiff, v. AL SCHWARTZ, as executor of the estate of Rubin Schwartz,

deceased, Sophie Schwartz, Lena Schwartz,

Millicent R. Shelden, Stanley B.

Schwartz and Jaimie Schwartz,

Defendants.

Supreme Court, Special Term, Kings County, Part I.

Aug. 3, 1961.

Emanuel Rothstein, New York City, guardian ad litem for Jaimie Schwartz, infant, for the motion.

Stuart M. Paley, New York City, for plaintiff, in opposition.

MARK A. COSTANTINO, Justice.

This is a motion to dismiss the complaint under Rule 107 of the Rules of Civil Practice, subds. 1, 2 and 4 thereof, and upon the further ground that the court in its discretion should decline to grant declaratory judgment herein.

Plaintiff in his complaint makes a collateral attack (for lack of jurisdiction) upon the validity of a decree of divorce obtained in 1954 in the State of Nevada in an action brought by his father (now deceased) against his mother. By his complaint plaintiff seeks to have the said decree declared invalid and to have a determination made of the status of decedent's second wife and the issue of the said subsequent marriage, the infant son who is making this motion. It is alleged in the complaint that the Nevada court lacked jurisdiction over the subject matter of the action (for lack of domicile in that state of either party to the action) as well as of the person of the defendant in that action who was not served with process nor appeared therein.

Under the circumstances alleged that courts of this state would not be violating the full faith and credit clause of the Federal Constitution by refusing to give effect to such a judgment (Matter of Lindgren's Estate, 293 N.Y. 18, 55 N.E.2d 849, 153 A.L.R. 936). It is undisputed that neither the decedent nor his personal representative, in this case the executor of his estate, could question the validity of the Nevada divorce decree. Hynes v. Title Guarantee and Trust Co., 273 N.Y. 612, 7 N.E.2d 719. However, since 'it is neither a right of the decedent nor of his estate which is the subject of' the action herein, plaintiff is entitled to question the validity of the divorce decree and re-marriage in support of his asserted right to his proper share in the decedent's estate. Matter of Lindgren's Estate, supra, 293 N.Y. at page 23, 55 N.E.2d at page 851; Matter of Bourne, 2 A.D.2d 896, 157 N.Y.S.2d 189; see also Annotation in 12 A.L.R.2d 717, particularly 742.

The court does not accept the view, urged by the moving party, that plaintiff's position as a legatee under the last will and testament of the deceased places him in a position of privity with the deceased thereby subjecting him to the same disability which would bar the decedent or his personal representative from questioning the...