Shenker v. Shenker

7 A.D.2d 1017, 184 N.Y.S.2d 385, 1959 N.Y. App. Div. LEXIS 9586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1959
• Status: Published

Opinion

In an action for a judgment declaring null and void (1) a Mexican decree of divorce procured by Jacob D. Shenker against Evelyn B. Shenker, plaintiff herein, and (2) his subsequent marriage with Evelyn Goldsmith, and for other relief, the appeal is from so much of an order as on reargument adhered to the original decision striking out, as irrelevant, paragraph “ Twenty-third ” of appellant’s separate answer. In her answer appellant demanded, pursuant to section 264 of the Civil Practice Act, a determination of the ultimate rights of herself and respondent, as between themselves. Respondent moved to strike out as irrelevant paragraph “ Twenty-third ” thereof, which demanded, in the event appellant’s marriage with respondent be declared a nullity as a result of the judgment in the main controversy, that she be granted relief pursuant to section 1140-a of the Civil Practice Act. Order modified by striking therefrom everything following the word “reargument” in the second ordering paragraph and by substituting therefor the words “ the motion to strike paragraph Twenty-Third from the answer of the co-defendant Evelyn Goldsmith be and the same hereby is denied.” As so modified, order insofar as appealed from affirmed, with $10 costs and disbursement to appellant. The propriety of invoking section 264 of the Civil Practice Act is not challenged by respondent. The application for relief under section 1140-a of the Civil Practice Act is not irrelevant. Nolan, P. J., Beldoek, Murphy, Ughetta and Hallinan, JJ., concur.