Shenker v. Shenker
| Decision Date | 01 August 1958 |
| Citation | 14 Misc.2d 980,178 N.Y.S.2d 792 |
| Parties | SHENKER v. SHENKER. |
| Court | New York Supreme Court |
Edith H. Kunen, New York City, for plaintiff.
Paul Gould, New York City, for defendant Jacob Shenker.
George S. Fishman, Brooklyn, for defendant Goldsmith.
In this motion for counsel fees a question arises which appears not to have been previously answered by our courts, nor does extensive examination of the history of pertinent statutes reveal the express intent of the Legislature or the Law Revision Commission which recommended the Statutes with respect to the right to counsel fees in the situation presented herein.
The action herein is for a declaratory judgment declaring that plaintiff is the lawful wife of the defendant Shenker; that the decree of divorce from plaintiff that Shenker obtained in Mexico is void and that his marriage to co-defendant Goldsmith (hereinafter termed wife No. 2) is null and void. Other relief is sought which is not pertinent to the discussion herein.
From the papers submitted on the motion herein it appears that although defendant Shenker and wife No. 2 still reside in the same house hold, they are for all intents and purposes in a state of separation. Both have appeared and answered the complaint but they appear by separate counsel and submit separate answers. Both assert the validity of the divorce of defendant Shenker from plaintiff and both assert the validity of the marriage between the co-defendants. Wife No. 2, in addition, demands affirmative relief determining the ultimate rights between herself and defendant Shenker.
Wife No. 2 now moves that her co-defendant pay her counsel fee to defend the action and to promote her ultimate rights against him in the event there is an adverse judgment against them in the main action.
Under section 1169 of the Civil Practice Act counsel fees may be awarded to a wife 'in an action for divorce, separation or annulment, or to declare the nullity of a void marriage brought in the lifetime of both parties.' The action herein, besides being one to declare the Mexican divorce void, is also one to declare the nullity of the second marriage. Thus it would appear that the court has jurisdiction to award counsel fees in the action. Defendant Shenker, however, urges that the above section merely countenances an action in which a spouse seeks a declaration that that spouse's marriage is void and does not contemplate the declaration of the invalidity of another marriage. There is nothing in the...
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