Opinion
December 4, 1944.
Present — Close, P.J., Carswell, Adel, Lewis and Aldrich, JJ. [See 179 Misc. 665.]
In an action for separation, in which the appellant interposed a defense that he had obtained a Florida decree of divorce, judgment in favor of the plaintiff unanimously affirmed, with costs. The weight of the evidence supports the finding of Special Term that the appellant, when he brought his action for divorce in Florida, was not domiciled there. The decree, based upon constructive service only, was, therefore, not entitled to recognition. ( Bell v. Bell, 181 U.S. 175; Matter of Lindgren, 293 N.Y. 18; Matter of Bingham, 265 App. Div. 463, motion for leave to appeal denied, 290 N.Y. 929.)