Opinion
October 11, 1943.
In an action by plaintiff wife for a separation from bed and board, defendant husband appeals (1) from an order denying his motion to dismiss the complaint on the ground that the parties are not husband and wife and that plaintiff has no legal capacity to sue; and (2) from an order granting to plaintiff alimony pendente lite and counsel fee. Orders severally affirmed, with one bill of ten dollars costs and disbursements. The pleaded determinations on motions made in the divorce action then pending in the Supreme Court, County of New York, between the parties to this action, are not, nor is either of them, conclusive between the parties here on the principle res judicata as determining that their marriage was dissolved by the Florida divorce obtained by the husband, for the reason that the question as to the bona fides of defendant's alleged domicile in Florida before the entry of that decree was not litigated on the motions resulting in the orders determining them. ( Riggs v. Pursell, 74 N.Y. 370, 378, and cases cited; and vide Bannon v. Bannon, 270 N.Y. 484, 489, 490.) Therefore, the order denying the defendant's motion to dismiss was properly made. As to the order granting alimony pendente lite and counsel fee, the same, in our opinion, was properly made, upon relevant facts disclosed in this record, asserted by the plaintiff and not challenged by the defendant. Close, P.J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.