Opinion
December, 1914.
Leopold Freiman, for appellant.
Morris and Samuel Meyers (Albert J. Rifkind and Morris Meyers, of counsel), for respondent.
An action was heretofore brought in the Supreme Court, Kings county, between the parties hereto for a separation. During the pendency of that action an agreement "that the said parties may and they shall continue to live, separate and apart from each other for all time," was entered into between the parties. The agreement among other things also provided that the defendant would pay to the plaintiff the sum of five dollars per week during her life "while she continues to be his wife." The defendant having made default in payment since September 25, 1911, this action was brought. The defendant sets up a decree of absolute divorce granted to him by the Second Judicial Court of the state of Nevada, on the 5th day of March, 1912, and claims that since that time the plaintiff has not been the wife of the defendant.
It is conceded that process in the Nevada case was not personally served upon this plaintiff within the state of Nevada and that she did not appear therein. The learned trial justice held that inasmuch as the defendant acquired a residence in Nevada that state became the matrimonial domicile of the parties, and the court of that state acquired jurisdiction of this plaintiff by the service of process upon her within this state.
At the time the agreement for a separation was made, the parties were living separate and apart. The agreement was therefore valid and binding upon the parties and could not be repudiated by either party acting alone. Galusha v. Galusha, 116 N.Y. 635, 642, 643; Winter v. Winter, 191 id. 462.
By virtue of this agreement the plaintiff had the right to establish a domicile separate and apart from her husband. Under such circumstances there can be no matrimonial domicile established by the act of the husband alone.
The decree of the Nevada court, having been granted without jurisdiction of the plaintiff, was void and constituted no defense to this action. The judgment should therefore be reversed, with costs, and judgment in favor of the plaintiff and against the defendant for the amount demanded in the complaint, with interest and costs, entered. The one hundred and twenty-five dollars paid to plaintiff at the close of the trial should be credited on the execution.
GUY and BIJUR, JJ., concur.
Judgment reversed, with costs.