Varrichio v. Varrichio

269 A.D. 678, 53 N.Y.S.2d 326, 1945 N.Y. App. Div. LEXIS 3219

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1945
• Status: Published

Opinion

Action for judgment declaring plaintiff and defendant to be husband and wife. The complaint alleges that defendant procured a void decree of divorce in the State of Nevada and then married one Charles Fitzpatrick, who, it is conceded, is overseas in the armed services. Order granting motion of defendant to compel plaintiff to join Charles Fitzpatrick as a necessary party defendant affirmed, with ten dollars costs and disbursements. No efficacious declaratory judgment could be made in the absence of Fitzpatrick as a party defendant and he is therefore a necessary party. (Manhattan Storage & Warehouse Co. v. Movers Assn., 289 N. Y. 82, 88; Somberg v. Somberg, 263 N. Y. 1, 4, 5; Bach v. Grabfelder, 233 App. Div. 860.) In view of this determination, plaintiff is relieved of his offer, made upon the argument, to withdraw his application for the relief sought in his complaint, in effect, that the judgment declare that defendant and Fitzpatrick are not husband and wife, that the defendant be enjoined from holding herself out as Fitzpatrick’s wife and that defendant be enjoined from living with Fitzpatrick as his lawful wife. Close, P. J., Hagarty, Johnston and Lewis, JJ., concur; Adel, J., concurs in result. [183 Misc. 1032.] [See post, p. 851.]