Opinion
December 5, 1958
Albert, Wolk, Belous Deutsch for plaintiff.
Horowitz, Parker Horowitz for defendant.
In this action for a separation and to impress a trust upon property in the State of New York and in the State of Florida, the plaintiff husband moves for a temporary injunction to restrain the defendant from continuing with a divorce action which she instituted in Florida prior to the commencement of this action.
The defendant has cross-moved to dismiss the complaint on the ground that there is another action pending between the parties for the same cause and that the complaint fails to state a cause of action.
Defendant's first objection is without merit both because the parties are reversed and because the other action is in a foreign jurisdiction. ( General Investment Co. v. Interborough R.T. Co., 200 App. Div. 794, affd. 235 N.Y. 133; McClellan v. Steywart, 171 Misc. 514.)
The second objection in support of the cross motion is not well taken either, because as between husband and wife the rigid requirements of the Statute of Frauds are often relaxed and the statute in any event, is a matter of affirmative defense.
As to the plaintiff's motion for an injunction, this does not appear to be the type of case that was before the court in Garvin v. Garvin ( 302 N.Y. 96). There the defendant in a separation action already pending in New York, where both parties had resided for many years, left for the Virgin Islands to get a divorce. An injunction to protect the wife's marital status was held proper. This is not equivalent to holding that a New York resident is entitled to an injunction against a spouse who is a bona fide resident of another State.
The showing made here is that the wife purchased a house in Florida and established a permanent residence there over a year before she commenced an action for divorce on September 2, 1958. Thereafter, the present action was initiated while she was on a visit in New York. Under these circumstances, the issuance of an injunction would be an unwarranted interference with the orderly judicial processes of another State.
Both motions are denied.
Short-form order signed.