Shrager v. Shrager
| Decision Date | 09 April 1957 |
| Parties | Florence S. SHRAGER, Plaintiff, v. Irving SHRAGER, Defendant. |
| Court | New York Supreme Court |
Raymond L. Nowve, New York City, for defendant.
Stull & Stull, New York City, for plaintiff.
The motion (No. F-1749) seeks summary judgment for the relief set forth in the complaint outlined below, or partial summary judgment and such severance as may be necessary. Defendant cross-moves (No. F-1767), seeking dismissal of the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. Based upon one omnibus cause of action, the complaint seeks the following relief, in substance: a declaratory judgment that a Connecticut judgment of divorce is valid; a declaration making said judgment, as modified and supplemented, the judgment of this court, enforceable here as if originally a judgment of this court; a direction to defendant to pay support arrears as fixed by said judgment and orders relative thereto; a declaration that it is defendant's duty to support his children and compelling him to comply in future with support provisions of the Connecticut judgment; a direction that security be required of defendant for the future payments to be made; an injunction against defendant's making various dispositions of his property; an order of sequestration; appointment of a receiver; and certain other related items of relief.
Upon its face the complaint does not state facts sufficient to constitute a cause of action for a declaratory judgment. No facts appear therein which indicate the existence of a real controversy requiring a declaration of the rights and legal relations of the parties. In such circumstances an action for declaratory judgment will not lie (Guardian Life Insurance Company of America v. Graves, 268 App.Div. 809, 48 N.Y.S.2d 618; Longo v. Longo, Sup., 133 N.Y.S.2d 269; American News Company, Inc. v. Avon Publishing Co., Inc., 283 App.Div. 1041, 131 N.Y.S.2d 566; MacCallum v. MacCallum, 2 A.D.2d 193, 153 N.Y.S.2d 810).
The balance of the relief sought is also basically equitable in nature and designated to obtain the benefits of the remedies granted by sections 1171, 1171-a and b and 1182, Civil Practice Act. Under the facts here presented, plaintiff may only seek to recover the arrears in support payments and other moneys due under the Connecticut decree, and that only after reducing her claim therefor to judgment by means of a suit at law. The attempt to obtain security, sequestration, receivership and contempt is ineffectual; such remedies are granted to enforce judgments of another state for divorce only where the ground for divorce was adultery, which concededly is not the fact here (Sections...
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