Somberg v. Somberg
| Decision Date | 21 November 1933 |
| Citation | 263 N.Y. 1,188 N.E. 137 |
| Parties | SOMBERG v. SOMBERG et al. |
| Court | New York Court of Appeals Court of Appeals |
Action by Etta Y. Somberg against Judith Gail Somberg and others. From an order of the Appellate Division (238 App. Div. 723, 265 N. Y. S. 223), reversing an order of the Special Term granting the defendants' motion to dismiss the complaint, the defendants appeal. The Appellate Division certified a question.
Order of the Appellate Division reversed, order of the Special Term affirmed, and question certified answered in the negative.
The following question was certified: ‘Does the complaint herein state facts sufficient to constitute a cause of action?’
Appeal from Supreme Court, Appellate Division, First department.
Harold Flatto, of New York City, for appellants Judith G. Somberg et al.
Arthur D. Goldstein, of New York City, for appellant Joseph S. Somberg.
Abraham J. Halprin, of New York City, for respondent.
The complaint makes these allegations: The plaintiff and defendant Joseph S. Somberg intermarried, in the state of New York, on the 17th of May, 1918. No court of competent jurisdiction by any decree has ever dissolved such marriage. In the month of June, 1932, the defendant Rose Baskind and the defendant Joseph S. Somberg moved into certain premises which they are now occupying as Mr. and Mrs. Joseph S. Somberg. Although they have not married, they have had intercourse, and are living as husband and wife. As a result of their intercourse they have had a child, born in August, 1932, known as Judith Gail Somberg, one of the defendants. They have advised all persons who have come in contact with them that Rose Baskind is the legal wife of Joseph S. Somberg. They have informed every one that Judith Gail Somberg is the lawful child of a marriage between them. Many people believe that the plaintiff and her husband, Joseph S. Somberg, were divorced; that the latter was thereafter lawfully married to Rose Baskind; that the defendant Judith Gail Somberg is the issue of such marriage. Judgment is demanded declaring that the plaintiff is the lawful wife of Joseph S. Somberg; that Rose Baskind be restrained from using the name of Rose Somberg; that Joseph S. Somberg be enjoined from holding out to the public that Rose Baskind is his lawful wife and that Judith Gail Somberg is his lawful issue; that Rose Baskind and Joseph S. Somberg be enjoined from holding themselves out as husband and wife and from using the name of Mr. and Mrs. Joseph S. Somberg. In a case where quite similar facts were not only alleged but proven, we held that the plaintiff was not entitled to injunctive relief such as is here demanded. Baumann v. Baumann, 250 N. Y. 382, 165 N. E. 819. On the other hand, we held that the plaintiff was entitled to a declaratory judgment that the plaintiff was the lawful wife of the defendant, and that the two had never been divorced by a court of competent jurisdiction. In this case, it has been held that, assuming the truth of the facts alleged, the plaintiff would similarly be entitled to a judgment declaring her marital status. We think that no case for such relief has here been stated, and that, in this respect, the case differs widely from that alleged and proven in Baumann v. Baumann, supra. There the husband had procured, in the state of Yucatan, Mexico, under the laws of that state, a decree or document which purported to grant him a divorce from the plaintiff. In order to establish the continuance of the plaintiff in her original marital state it was appropriate for the court to try out and determine the question of the validity of the ostensible divorce obtained. Here it is not asserted that there has been obtained in this state, or in any other state in this country or elsewhere, a decree or other document impugning the continuance of the marital relation...
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