Urban v. Urban ( 1962 )

Order unanimously affirmed, without costs of this appeal to either party. Memorandum: In this action for annulment brought by the plaintiff-respondent husband on the ground that the defendant-appellant wife had an undissolved pre-existing marriage at the time she entered into a marriage ceremony with respondent, the appellant interposed an answer containing simply a general denial. The appeal herein is from Special Term’s order denying appellant’s motion for summary judgment. The affidavits of the parties and their attorneys allege, and are supported by documentary proof, that appellant was in fact legally married at the time she entered into the ceremony with respondent in 1945. The affidavits further show that in 1956 the parties entered into a property settlement agreement and a divorce was granted appellant in a Florida proceeding in which both parties appeared. Respondent further alleges that after the Florida divorce, he received information indicating that in 1962 appellant’s first husband residing in England secured a divorce decree dissolving his marriage with appellant. In the light of the pleadings and particularly the appellant’s answer which fails to set up any affirmative defense with reference to the Florida divorce, Special Term had no alternative but to deny the motion for summary judgment. Upon the inadequate record before us, we affirm Special Term’s order but on the merits as gleaned from the affidavits, we call attention to Stalter v. Statter (2 N Y 2d 668) which might well ultimately determine the disposition of this action. (Appeal from order of Erie Special Term denying defendant’s motion for summary judgment and dismissal of the complaint, in an annulment action.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.