Eckert v. Eckert

Appellate Division of the Supreme Court of New York

Eckert v. Eckert

34 A.D.2d 684, 312 N.Y.S.2d 183, 1970 N.Y. App. Div. LEXIS 5005

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 27, 1970

StatusPublished

Cited by12 cases

This text of 34 A.D.2d 684 (Eckert v. Eckert) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eckert v. Eckert, 34 A.D.2d 684, 312 N.Y.S.2d 183, 1970 N.Y. App. Div. LEXIS 5005 (N.Y. Ct. App. 1970).

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Opinion

-In an action for a judicial separation, the defendant appeals from an order of the Supreme Court, Kings County, dated January 6, 1970, which granted plaintiff temporary alimony and other relief. Order reversed, without costs, and plaintiff’s motion for temporary alimony and other relief denied. It is undisputed that neither party has resided within this State for at least one year immediately preceding the institution of this action, as required by subdivision 1 of section 230 of the Domestic Relations Law, which is the applicable statute. As the court’s jurisdiction in matrimonial actions is wholly statutory and is limited to that which is expressly conferred by statute (Langerman v. Lrnger- - man, 303 N. Y. 465, 470; Matter of Seitz v. Drogheo, 21 N Y 2d 181, 185; Adelman v. Adelman, 3 A D 2d 839), the failure to meet the statutory residence requirements for the bringing of this separation action deprived the court of jurisdiction of the subject matter of the action (Gromel v. Gromel, 22 Mise 2d 33; Poehna V. Poehna, 18 Mise 2d 413; Gargiulo v. Gargiulo, 207 Mise. 427, 429; see, also, Saeks v. Sacks, 47 Mise 2d 1050; Elwell v. Elwell, 70 Mise. 61). It is irrelevant that defendant may have appeared generally and submitted his person to the court’s jurisdiction by arguing the merits of this motion. Since lack of jurisdiction of the subject matter cannot be waived, the defendant cannot be estopped to object on that ground, that objection can be raised at any time, and even the consent or agreement of the parties cannot confer on the court jurisdiction of the subject matter which it otherwise lacks (1 CarmodyWait 2d, New York Practice, § 2:80; 21 C. J. S., Courts, §§ 108, 109; 20 Am. Jur. 2d, Courts, § 95; Bevona Beatty Go. v. Wasserman, 4 A D 2d 444, 447; Kingston v. Kingston, 283 App. Div. 355, 357; Kalfus v. Anderson, 186 Mise. 110,113, affd. 270 App. Div. 888; Matter of Esser, 38 Mise 2d 963; Solomon v. Kennedy, 38 Mise 2d 1090; Poehna v. Poehna, supra-, Lang v. Merchants Mut. Gas. Go., 203 Mise. 258, 260). Lacking jurisdiction of the subject matter of this action, Special Term had no power to make the appealed-from order. Rabin, Acting P. J., Martuscello, Latham, Kleinfeld and Benjamin, JJ., concur.

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-In an action for a judicial separation, the defendant appeals from an order of the Supreme Court, Kings County, dated January 6, 1970, which granted plaintiff temporary alimony and other relief. Order reversed, without costs, and plaintiff’s motion for temporary alimony and other relief denied. It is undisputed that neither party has resided within this State for at least one year immediately preceding the institution of this action, as required by subdivision 1 of section 230 of the Domestic Relations Law, which is the applicable statute. As the court’s jurisdiction in matrimonial actions is wholly statutory and is limited to that which is expressly conferred by statute (Langerman v. Lrnger- - man, 303 N. Y. 465, 470; Matter of Seitz v. Drogheo, 21 N Y 2d 181, 185; Adelman v. Adelman, 3 A D 2d 839), the failure to meet the statutory residence requirements for the bringing of this separation action deprived the court of jurisdiction of the subject matter of the action (Gromel v. Gromel, 22 Mise 2d 33; Poehna V. Poehna, 18 Mise 2d 413; Gargiulo v. Gargiulo, 207 Mise. 427, 429; see, also, Saeks v. Sacks, 47 Mise 2d 1050; Elwell v. Elwell, 70 Mise. 61). It is irrelevant that defendant may have appeared generally and submitted his person to the court’s jurisdiction by arguing the merits of this motion. Since lack of jurisdiction of the subject matter cannot be waived, the defendant cannot be estopped to object on that ground, that objection can be raised at any time, and even the consent or agreement of the parties cannot confer on the court jurisdiction of the subject matter which it otherwise lacks (1 CarmodyWait 2d, New York Practice, § 2:80; 21 C. J. S., Courts, §§ 108, 109; 20 Am. Jur. 2d, Courts, § 95; Bevona Beatty Go. v. Wasserman, 4 A D 2d 444, 447; Kingston v. Kingston, 283 App. Div. 355, 357; Kalfus v. Anderson, 186 Mise. 110,113, affd. 270 App. Div. 888; Matter of Esser, 38 Mise 2d 963; Solomon v. Kennedy, 38 Mise 2d 1090; Poehna v. Poehna, supra-, Lang v. Merchants Mut. Gas. Go., 203 Mise. 258, 260). Lacking jurisdiction of the subject matter of this action, Special Term had no power to make the appealed-from order. Rabin, Acting P. J., Martuscello, Latham, Kleinfeld and Benjamin, JJ., concur.

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Bluebook (online)

34 A.D.2d 684, 312 N.Y.S.2d 183, 1970 N.Y. App. Div. LEXIS 5005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eckert-v-eckert-nyappdiv-1970.

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