Stevens v. Stevens
| Court | New York Court of Appeals |
| Writing for the Court | LOUGHRAN |
| Citation | 273 N.Y. 157,7 N.E.2d 26 |
| Parties | STEVENS v. STEVENS. |
| Decision Date | 09 March 1937 |
273 N.Y. 157
7 N.E.2d 26
STEVENS
v.
STEVENS.
Court of Appeals of New York.
March 9, 1937.
Action by Edythe Stevens against Edwin A. Stevens. From an order of the Appellate Division of the Supreme Court (248 App.Div. 344, 288 N.Y.S. 785), reversing on the law an order of the Trial Term dismissing a counterclaim of the defendant, plaintiff appeals.
Affirmed, and certified question answered.
The following question was certified: ‘Should the motion to dismiss the counterclaim have been granted?’
[7 N.E.2d 26]
Appeal from Supreme Court, Appellate Division, Second department.
George E. Mulry and Edward S. de Pasquale, both of Mineola, L. I., for appellant.
Edward Robinson, Jr., of Oyster Bay, L. I., for respondent.
LOUGHRAN, Judge.
This is an acion by a wife for a separation from her husband. He demands a judgment of divorce on a counterclaim founded upon an allegation of adultery which is traversed by her reply. On the trial she put in evidence a decree of divorce obtained by him a few months before in the State of Nevada. It was admitted that the Nevada court was without jurisdiction either of the cause or of the person of the wife and that its judgment had no force in this State. There had been no subsequent marriage of either party.
In that condition of the record, the husband's present counterclaim for a divorce was dismissed, ‘because by reason of the action he started in Nevada, as far as he is concerned, he has no wife.’ This order of the Trial Term was reversed by the Appellate Division. A majority of the justices thought that any estoppel against the husband on account of his Nevada decree was waived by the wife when she commenced this separation action. There were two dissents on the ground that, while adultery by the wife would here be a defense, the husband is precluded by his proceedings in Nevada from seeking now an affirmative judgment dissolving the marriage of the parties.
Our conclusion is that the award of the Nevada decree to the husband should have no effect upon the right of either party to a full adjudication in this action upon the conceded fact of their existing marital status.
This is not a case in which one spouse, after having secured a foreign divorce decree not binding in this State on the other, attempts thereafter to assert in our courts a private claim or demand arising out of their marriage. There are situations in which such a private suit will be barred by the fact of the foreign decree. Thus in Starbuck v. Starbuck, ...
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Hamm v. Hamm
...litigants access to the court. A leading case illustrating the class denominated "matrimonial actions" is that of Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016. That was an action by a wife for separation in which the husband demanded a judgment of divorce on a counterclaim......
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Krause v. Krause
...citing Brown v. Brown, 242 App.Div. 33, 272 N.Y.S. 877; affirmed 266 N.Y. 532, 195 N.E. 186, and the minority citing Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016. Defendant appeals upon the following question, certified by the Appellate Division to this court: ‘Is the seco......
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Smith v. Smith
...demands arising out of the pseudo-marital relation and those in which that status is directly involved, the Court in Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R., 1016, at page 1017, said: ‘Here the court was invoked to pronounce judgment directly upon the marital status-a rela......
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Smith v. Smith
...demands arising out of the pseudo-marital relation and those in which that status is directly involved, the Court in Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016, at page 1017, said: 'Here the court was invoked to pronounce judgment directly upon the marital status--a rela......
-
Hamm v. Hamm
...litigants access to the court. A leading case illustrating the class denominated "matrimonial actions" is that of Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016. That was an action by a wife for separation in which the husband demanded a judgment of divorce on a counterclaim......
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Krause v. Krause
...citing Brown v. Brown, 242 App.Div. 33, 272 N.Y.S. 877; affirmed 266 N.Y. 532, 195 N.E. 186, and the minority citing Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016. Defendant appeals upon the following question, certified by the Appellate Division to this court: ‘Is the seco......
-
Smith v. Smith
...demands arising out of the pseudo-marital relation and those in which that status is directly involved, the Court in Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R., 1016, at page 1017, said: ‘Here the court was invoked to pronounce judgment directly upon the marital status-a rela......
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Cohen v. Randall, No. 238.
...supra. 7 Reversing 176 Misc. 446, 26 N.Y.S. 2d 8, affirmed 263 App.Div. 797, 32 N. Y.S.2d 126, and relying on Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016, and Vose v. Vose, 280 N.Y. 779, 21 N.E.2d 616, and distinguishing Krause v. Krause, 282 N.Y. 355, 26 N.E. 2d 290, whe......