Fico v. Fico , 4 Misc. 2d 190 ( 1956 )

George M. Fanelli, J.

Motion to set aside service of the summons and complaint made outside the State.

This is an action brought by plaintiff wife against defendant husband and female corespondent for a judgment of separation and for a declaratory judgment that a Mexican divorce allegedly obtained by defendant husband against plaintiff is null and void and that the corespondent is not the lawful wife of defendant husband.

One of the causes of action in the separation action is brought pursuant to subdivision 5 of section 1161 of the Civil Practice Act, and involves the commission of an act of adultery by defendant with the corespondent. The corespondent appears specially and moves to set aside the service of the summons and complaint made upon her in the State of Connecticut.

Insofar as the cause of action for a declaratory judgment is concerned, while such an action for some purposes is a matrimonial action, yet sections 232 and 235 of the Civil Practice Act do not provide for service of process outside the State in such an action. (See Altholz v. Altholz, 72 N. Y. S. 2d 143.)

With regard to the separation action, while it is true that adultery is a ground for a judicial separation, nevertheless, there is no statutory authority for making a corespondent a party defendant nor even permitting the corespondent to appear and defend the issues which affect such corespondent. In examining section 1151 of the Civil Practice Act, which deals with a corespondent in a divorce action, it has been held that a corespondent is not a “ party ” to the action, since he is not allowed to appear generally in the action as plaintiff or defendant, but only to the limited extent of defending so far as the issues affect him. (See Simons v. Simons, 182 Misc. 860.)

In the light of the above, the motion must be and is granted. Settle order on notice.