Kiel v. Kiel

New York Supreme Court

Kiel v. Kiel

146 Misc. 333, 261 N.Y.S. 162, 1932 N.Y. Misc. LEXIS 1681

DecidedDecember 15, 1932

StatusPublished

This text of 146 Misc. 333 (Kiel v. Kiel) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kiel v. Kiel, 146 Misc. 333, 261 N.Y.S. 162, 1932 N.Y. Misc. LEXIS 1681 (N.Y. Super. Ct. 1932).

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Opinion

McGeehan, J.

The motion is granted. The husband sues the wife for an annulment, alleging that their marriage was the result of force and duress, which is denied by the answer of the wife. There appears to be no question that the parties were legally married. The husband contends that this application for alimony and counsel fee should be denied because of lack of jurisdiction, evidently relying on section 1170 of the Civil Practice Act, which does not specifically provide for such awards in an action of this, nature. In Higgins v. Sharp (164 N. Y. 4, at p. 9) the court said: “ It seems to us, therefore, that actions to annul a marriage are governed, with respect to alimony and counsel fees, by the same principles as all other actions for divorce. When the court was vested with jurisdiction in such cases, the incidental power to guard and protect the rights of the wife, which had always been regarded as a part of the jurisdiction, necessarily followed and attached, upon the plainest principles of reason and justice.” Upon the proofs hereon the defendant is awarded temporary alimony in the sum of seven dollars a week, commencing December 14,1932, and a counsel fee of fifty dollars, one-half payable within ten days after service of a copy of the order to be entered hereon, and the remainder when the action appears upon the ready calendar for trial. Settle order.

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McGeehan, J.

The motion is granted. The husband sues the wife for an annulment, alleging that their marriage was the result of force and duress, which is denied by the answer of the wife. There appears to be no question that the parties were legally married. The husband contends that this application for alimony and counsel fee should be denied because of lack of jurisdiction, evidently relying on section 1170 of the Civil Practice Act, which does not specifically provide for such awards in an action of this, nature. In Higgins v. Sharp (164 N. Y. 4, at p. 9) the court said: “ It seems to us, therefore, that actions to annul a marriage are governed, with respect to alimony and counsel fees, by the same principles as all other actions for divorce. When the court was vested with jurisdiction in such cases, the incidental power to guard and protect the rights of the wife, which had always been regarded as a part of the jurisdiction, necessarily followed and attached, upon the plainest principles of reason and justice.” Upon the proofs hereon the defendant is awarded temporary alimony in the sum of seven dollars a week, commencing December 14,1932, and a counsel fee of fifty dollars, one-half payable within ten days after service of a copy of the order to be entered hereon, and the remainder when the action appears upon the ready calendar for trial. Settle order.

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Bluebook (online)

146 Misc. 333, 261 N.Y.S. 162, 1932 N.Y. Misc. LEXIS 1681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiel-v-kiel-nysupct-1932.

Opinion

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