Schermerhorn v. Schermerhorn

Van Kirk, J.:

The motion was denied solely on the ground that “ the judgment of the Nevada court is, as it now stands, a bar to this motion.” The merits of the motion, or whether a cause of action was stated in the complaint, were not considered. This action is for a separation, brought by the wife, who was the defendant in the Nevada action, against the plaintiff therein.

The action in Nevada was "brought for a divorce based on charges of cruelty; the defendant appeared and answered in that action. In her answer she set forth no counterclaim for divorce or separation and she made no demand for such relief. She did ask that relief be denied to the plaintiff; also that $150 per month alimony be granted her. This demand for alimony was not based upon any affirmative relief to be granted to her, but evidently in case the husband was granted a decree. The Nevada decree dismissed both the complaint and the answer. That decree is valid and binding upon the parties and has the same force between the parties as if procured in this State, but it does not decide matters not involved in that action.

The plaintiff here is not barred by the Nevada decree from bringing an action for separation in this State, nor is she barred thereby from securing alimony in such an action, should the Special Term consider her entitled thereto. We have read the cases cited by the court below and find nothing in conflict with the above.

The order is reversed, with ten dollars costs and disbursements, and plaintiff allowed alimony in the sum of forty-two dollars a week, from the time motion was made, and for counsel fee and expenses five hundred dollars, with ten dollars costs.

All concur.

Order reversed, with ten dollars costs and disbursements, and plaintiff allowed alimony in the sum of forty-two dollars a week, from the time motion was made, and for counsel fee and expenses five hundred dollars, with ten dollars costs.