Heine v. Heine

Appellate Division of the Supreme Court of New York

Heine v. Heine

10 A.D.2d 864, 199 N.Y.S.2d 788, 1960 N.Y. App. Div. LEXIS 10696

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

DecidedApril 11, 1960

StatusPublished

This text of 10 A.D.2d 864 (Heine v. Heine) 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

Heine v. Heine, 10 A.D.2d 864, 199 N.Y.S.2d 788, 1960 N.Y. App. Div. LEXIS 10696 (N.Y. Ct. App. 1960).

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Opinion

— In an action by a wife for a judgment declaring void a Mexican decree of divorce which she procured on a “ one hour ” appearance (first cause of action), and for other relief, the appeal is from so much of an order as granted defendants’ motion to dismiss the first cause of action for failure to state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106). Order modified upon the law by striking from the first ordering paragraph the word “ granted,” and by substituting therefor the word “ denied,” and by striking out the second ordering paragraph. As so modified, order insofar as appealed from unanimously affirmed, without costs. The respondents, if so advised, may serve their answers to the first cause of action within 20 days after service of a copy of the order hereon with notice of its entry. Under the allegations of the complaint, which we must assume are true, the Mexican divorce here involved is a nullity, and of no more validity than a so-called mail-order divorce (Rosenbaum v. Rosenbaum, 309 N. Y. 371, 376; cf. Caldwell v. Caldwell, 298 N. Y. 146; Alfaro v. Alfaro, 5 A D 2d 770, affd. 7 N Y 2d 949). It was error, therefore, to dismiss appellant’s first cause of action for insufficiency. In view of the cited cases, it is our opinion that the decision in Laff v. Laff (5 Misc 2d 554, affd. 4 A D 2d 874) rendered after a trial of the issues involved, is no longer controlling. Present —Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ. [201 Misc 2d 409.]

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— In an action by a wife for a judgment declaring void a Mexican decree of divorce which she procured on a “ one hour ” appearance (first cause of action), and for other relief, the appeal is from so much of an order as granted defendants’ motion to dismiss the first cause of action for failure to state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106). Order modified upon the law by striking from the first ordering paragraph the word “ granted,” and by substituting therefor the word “ denied,” and by striking out the second ordering paragraph. As so modified, order insofar as appealed from unanimously affirmed, without costs. The respondents, if so advised, may serve their answers to the first cause of action within 20 days after service of a copy of the order hereon with notice of its entry. Under the allegations of the complaint, which we must assume are true, the Mexican divorce here involved is a nullity, and of no more validity than a so-called mail-order divorce (Rosenbaum v. Rosenbaum, 309 N. Y. 371, 376; cf. Caldwell v. Caldwell, 298 N. Y. 146; Alfaro v. Alfaro, 5 A D 2d 770, affd. 7 N Y 2d 949). It was error, therefore, to dismiss appellant’s first cause of action for insufficiency. In view of the cited cases, it is our opinion that the decision in Laff v. Laff (5 Misc 2d 554, affd. 4 A D 2d 874) rendered after a trial of the issues involved, is no longer controlling. Present —Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ. [201 Misc 2d 409.]

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10 A.D.2d 864, 199 N.Y.S.2d 788, 1960 N.Y. App. Div. LEXIS 10696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heine-v-heine-nyappdiv-1960.

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