Opinion
April 21, 1943.
Greenthal Diemert for defendant.
B. Leo Schwarz for plaintiff.
Motions 3641 and 3661 are consolidated. In this action the plaintiff sued the defendant, his then wife, for absolute divorce. The jury, on May 1, 1940, decided in her favor on the question of adultery. Since that time he has gone to Florida; but nothing further was done in this action. He himself commenced an action for divorce in Florida, where service was apparently by publication. Defendant now moves for the approval and adoption of the jury's verdict; to dismiss this action and for a direction that plaintiff pay the alimony from the date of the last payment until the date of the entry of judgment dismissing the complaint herein. These parties have been before this court since the rendition of the Florida judgment. The application appears to have been one to punish the plaintiff for contempt of court for failure to pay alimony. Her motion was denied by this court, on the ground that she was no longer the wife of the plaintiff. ( Weissberger v. Weissberger, 179 Misc. 657.) Such a ruling is the law of this case and binding now. Therefore, for the purposes of this motion and this action, we must find that the Florida divorce is valid. It follows that since they are no longer husband and wife, neither party has the right to sue or continue an action already started but which has not ripened into a judgment. The motion of the defendant for the adoption of the verdict of the jury and for an order dismissing the action and for the payment of temporary alimony alleged to be due to the defendant under such judgment is denied. The cross motion to dismiss the action is granted on the ground that, under the law of this case, the parties are no longer husband and wife. Settle order.