Von Prochazka v. Von Prochazka — 21 N.Y. St. Rep. 309

Majority

p. 309

Joseph Otto Von Prochazka, Resp’t, v. Linnie Von Prochazka, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Divorce—Action for by second wife—Reversal of a former decree OBTAINED BY FIRST WIFE—No GROUND TO ENJOIN ACTION BY SECOND WIFE.

At the suit of his wife plaintiff was divorced, and married again. Pending an action by his second wife for a divorce, the decree divorcing him from his former wife was, at her instance, annulled db initia, which he sought to set up by amended or supplemental answer as a defense to the action by his second wife, but was refused leave to file either answer for that purpose. Meld, such refusal was no ground to enjoin the action by the second wife.

Appeal from an order made at a special term, Westchester county, denying a motion to vacate an injunction.

In 1877 the respondent married Minna Yon Prochazka. There is issue of that marriage.

In 1881 by default she obtained a decree of divorce from Mm in this court.

In 1885 he married the appellant.

In 1887 she commenced an action against him for a divorce for adultery in the first department of this court.

On February 16, 1888, issue was joined.

On March 31, 1888, the divorce obtained by the first wife was, on her application to this court, annulled ab initia. Dykman, J

On April 19, 1888, respondent applied for leave to amend answer in appellant’s action for divorce in first department, by pleading .that former wife was living and marriage with, her in force.

Leave was denied. Yan Brunt, J.

April 26th, made new motion for leave to serve supplemental answer as to same facts with same results, before same judge

p. 310

This action was then brought and an injunction obtained, staying proceedings in appellant’s action until the determination of this one.

The propriety of the granting of that injunction, and denial of the appellant’s motion to vacate it, is the sole subject of this appeal.

■ W. Lane O’Neill, for app’lt; MacKinley & Aslarita, for resp’t.

The complaint recites that at the time of the marriage between the parties there was in force a decree divorcing Joseph Von Prochaska from his previous wife.

This defendant had a right to trust in that decree, and the recent decisions are to the effect that a marriage in New Jersey between parties thus situated is valid, and will be so regarded by the courts of this state. Van Voorhis v. Brintnall, 86 N. Y. 27 ; Ponsford v. Johnson, 2 Blatchford 51, 59.

Whether the subsequent vacating of the decree of divorce will have the effect of annulling a valid marriage previously contracted on the faith of the decree, is a question by no means free from difficulty.

When a marriage has been in good faith contracted in the mistaken belief of the death of a party who has been absent more than five years, the marriage will be void only from the time its nullity shall be pronounced by a court. 2 R. S., 139 § 6.

The cases are somewhat analogous, and it may well bo that in the present case the interests of the injured party will be guarded with equal care.

For one court to restrain proceedings in another court of equal dignity already possessed of a litigation is a high exercise of authority; and will seldom be done where the first court has means to render full justice between the parties. 5 Sand., 612; 54 N. Y. 458 -463.

In the present case the conduct of the plaintiff is not upon his own showing free from criticism.

The position of being married to two woman at once may well have its inconveniences, but the court is not responsible for them, the plaintiff brought them upon himself, and we are not able to see anything in the situation which requires us to enjoin the wife from proceeding in the action originally brought by her.

From these views it follows that the order appealed from should be reversed with ten dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not siting.

Cases cited

Savage v. Allen 54 N. Y. 458 N.Y. Comm'n App. p. 310