Rosenstiel v. Rosenstiel

McNally, J.,

dissents in the following memorandum: I dissent and vote to grant the motion on the ground that the withholding of the temporary injunction prayed for in this ease presents the question whether or not there has been an abuse of discretion in denying an injunction pendente lite restraining the prosecution by the defendant of a Connecticut action for divorce and other relief on grounds therefor not recognized in New York. The parties were married in and plaintiff resides in New York. There is an antenuptial agreement which will terminate upon the divorce or separation of the parties by decree or agreement. Triable issues of fact are present in respect of the defendant’s claimed Connecticut domicile. As I view the authorities the presence of substantial factual issues as to defendant’s alleged Connecticut domicile entitles the plaintiff to the preservation of the status quo and the relief sought towards that end. Therefore, in my opinion, the denial of such relief presents a substantial reviewable question of law.