decided: May 14, 1969.
MARY L. WEITZ, RESPONDENT-APPELLANT,
LOUIS WEITZ, APPELLANT-RESPONDENT
Weitz v. Weitz, 31 A.D.2d 613, affirmed.
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur; Judge Keating taking no part.
Memorandum. The order of the Appellate Division appealed from should be affirmed, with costs to respondent-appellant. Assuming, despite the affirmed findings of fact, that the evidence is insufficient to establish the plaintiff wife's divorce from her prior husband, Rivara, she is entitled, under sections 236 and 237 of the Domestic Relations Law, to the award of support and counsel fees. The statute unquestionably embraces, at the very least, a husband-wife relationship following a ceremonial marriage, although void for extrinsic reason (see 1940 Report of N. Y. Law Rev. Comm., p. 245, relating to predecessor sections of the Civ. Prac. Act; see, also, Domestic Relations Law, § 25). A narrower view would detract from the purpose of the statute and the essential justice it was designed to achieve (cf. Johnson v. Johnson, 295 N. Y. 477; see Practice Commentary by David D. Siegel, McKinney's Cons. Laws of N. Y., Book 14, Domestic Relations Law, § 236). Nor is it required, as urged by defendant husband, that he have sought affirmative relief by complaint or counterclaim; it is sufficient that by his answer he affirmatively represented to the court the nullity of the marriage to plaintiff wife. Consequently, there is no substance to the constitutional issues raised by defendant husband.
Order affirmed, with costs to respondent-appellant, in a memorandum.
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