McCarthy v. McCarthy

263 A.D. 848, 31 N.Y.S.2d 752, 1941 N.Y. App. Div. LEXIS 5249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1941
• Status: Published

Opinion

Action for a divorce. Order granting plaintiff’s motion under rule 103 of the Rules of Civil Practice to strike out the first separate defense affirmed, without costs. Order granting a similar motion with respect to the second separate defense reversed on the law, with ten dollars costs and disbursements, and the motion denied, without costs. The affidavits and certificates sufficiently establish that the first defense is sham. The second defense is good as pleaded and triable issues exist as to the jurisdiction of the court which rendered the decree. Plaintiff in that action (the defendant here) claims an abandonment which entitled her to choose her own domicile, that she established a bona fide, as contrasted with .? temporary, domicile in the State of Nevada, that the court in that State thereby had jurisdiction of the res, and that service without the State was adequate. (See Card v. Card, 171 Misc. 217, and Matter of Bennett, 135 id. 486.) Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.