Busk v. Busk

18 A.D.2d 700, 236 N.Y.S.2d 336, 1962 N.Y. App. Div. LEXIS 6256

Opinion

In an action by a wife for a judicial separation or, in the alternative, for an annulment of the marriage, in which the husband counter-claimed for an annulment of the marriage, the plaintiff wife appeals from so much of an order of the Supreme Court, Nassau County, dated May 22, 1962, as: (a) denied her motion for summary judgment to dismiss defendant’s counterclaim, on the basis of official records which establish a defense to such counterclaim (Rules Civ. Prac., rule 113, subd. 4); (b) dismissed her cause of action for a separation; and (e) severed the action so as to continue it with respect to plaintiff’s cause of action and defendant’s counterclaim for an annulment (229 N. Y. S. 2d 904). Order modified by striking out its second decretal paragraph which dismissed plaintiff’s cause of action for a separation and which severed it from the remaining cause of action and counterclaim for a separation. As so modified, order, insofar as appealed from, affirmed, without costs. In our opinion, the documentary evidence offered in support of the wife’s motion for summary judgment was an insufficient basis for the finding at Special Term (see 229 N. Y. S. 2d 904) that the first Mexican divorce decree was of the “ mail-order ” variety proscribed in this State, and that consequently the parties are not validly married. The determination of the issues concerning the validity of the marriage raised by the pleadings, particularly with respect to the defense of res judicata and estoppel, should be resolved upon proof to be adduced upon a plenary trial. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.