Sondheim v. Sondheim , 268 A.D. 379 ( 1944 )

Callahan, J.

In view of the so-called Mexican “ divorce ” obtained by the defendant Herbert Sondheim after the entry of judgment of separation in favor of plaintiff here in the Supreme Court, New York County, we find that Special Term properly exercised its discretion in granting a judgment declaring the “ divorce ” obtained in Mexico null and void, and further decreeing that plaintiff is and at all times since the date of her marriage has been the lawful wife of the defendant Herbert Sondheim. We deem, however, that the same degree of necessity and usefulness does not exist for the second and third decretal paragraphs of the judgment appealed from, and that under the circumstances found here those paragraphs should have been omitted. (Somberg v. Somberg, 263 N. Y. 1.)

Accordingly, the judgment appealed from should be modified by striking therefrom paragraphs II and III, and as so modified affirmed. The third conclusion of law found in'the decision should likewise he stricken out.

Martin, P. J., Untermyer and Cohn, JJ., concur; Dore, J., dissents in part and votes to affirm.

■Judgment modified by striking therefrom paragraphs II and 111, and as so modified affirmed. The third conclusion of law found in the decision is likewise stricken out. Settle order on notice.