Von Prochazka v. Von Prochazka.
(Supreme Court, General Term, Second Department.
December 13,1888.)
Divorce—Action for—Reversal of Former Decree—Injunction.
Plaintiff was divorced from his wife at her suit, and married again. His second; wife also sued for a divorce, and pending this action the decree divorcing him from his former wife was, at her instance, annulled in toto, which he sought to set up as a defense to the action by his second wife, but was refused leave to file an amended or supplemental answer for that purpose. Held no ground to enjoin the action by the second wife.
Appeal from special term, Westchester county.
In 1877, Joseph Otto Yon Prochazka was married to Minna Yon Prochazka, and in 1881 she obtained a divorce from him by default. In 1885 he married, the defendant in this action, Linna Yon Prochazka, and in 1887 she instituted an action against him for divorce, in which issue was joined, February 16, 1888. On March 31, 1888, the first wife, Minna, obtained an order setting aside in toto the decree of divorce she obtained in 1881, and on April 19th he-asked for leave to amend his answer in the pending action by defendant Linna, by setting up the illegality of his second marriage; asserting that he was lawfully married, and had ever been the husband of the said Minna. This being refused, he made an application for leave to serve a supplemental answer, setting up the same facts, which was also refused. In the mean time testimony had been taken, and he was ordered to pay sums to the said Linna as alimony and counsel fees pendente lite. Upon being refused leave to set up-said defense, the defendant (plaintiff here) began this action to annul themarrriage between him and the said Linna, (defendant here,) and to enjoin her from prosecuting her suit for divorce on the ground that he was refused, the right to make his defense therein. A preliminary injunction was granted, which, upon motion, Justice Dykman, at special term, refused to dissolve, and the defendant appeals.
*302Argued before Barnard, P. J., and Pratt, J.
W. Lane O'Neill, for appellant. Mackinley & Astarita, for respondent.
Pratt, J.
The complaint recites that at the time of the marriage between the parties there was in force a decree divorcing Joseph Yon Prochazka from his previous wife. This defendant had aright to trust in that decree, and the recent decisions are to the effect that a marriage in New Jersey between parties thus situated is valid, and will be so regarded by the courts of this state. Van Voorhis v. Brintnall, 86 N. Y. 27; Ponsford v. Johnson, 2 Blatchf. 51, 59. Whether the subsequent vacating of the decree of divorce will have the . effect of annulling a valid marriage previously contracted on the faith of the decree., is a question by no means free from difficulty. When a marriage has -been in good faith contracted in the mistaken belief of the death of a party, who has been absent more than five years, the marriage will be void only from .the time its nullity shall be pronounced by a court. 2 Itev. St. 139, § 6. The cases are somewhat analogous, and it may well be that in the present case .the interests of the injured party will be guarded with equal care. Por one court to restrain proceedings in another court of equal dignity already possessed of a litigation, is a high exercise of authority, and will seldom be done where the first court has means to render full justice between the parties. Grant v. Quick, 5 Sandf. 612; Savage v. Allen, 54 N. Y. 458-463. In the ¿present case the conduct of the plaintiff is not, upon his own showing, free from criticism. The position of being married to two women at once may well have its inconveniences, but the court is not responsible for tliem. The plaintiff brought them upon himself, and we are not able to see anything in the situation which requires us to enjoin the wife from proceeding in the action originally brought by her. Prom these views it follows that the order .appealed from should be reversed, with $10 costs and disbursements.
Barnard, P. J., concurs.