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BENJAMIN KRIEGER v. ETHEL KRIEGER ET AL. (11/26/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43665 <http://www.versuslaw.com>; 254 N.E.2d 750; 25 N.Y.2d 364 decided: November 26, 1969. BENJAMIN KRIEGER, RESPONDENT,v.ETHEL KRIEGER ET AL., APPELLANTS Krieger v. Krieger, 29 A.D.2d 43, reversed. Counsel Richard T. Farrell for appellants. Samuel Lawrence Brennglass and Lawrence H. Levinson for respondent. Judges Burke, Breitel and Gibson concur with Judge Bergan; Judge Jasen dissents and votes to affirm in a separate opinion in which Chief Judge Fuld and Judge Scileppi concur. Author: Bergan


Krieger v. Krieger, Judges Burke, Breitel and Gibson concur with Judge Bergan; Judge Jasen dissents and votes to affirm in a separate opinion in which Chief Judge Fuld and Judge Scileppi concur.

Author: Bergan

 The function of the declaratory judgment has commonly been understood by the profession to be to determine justiciable controversies between parties which either are not yet ripe for adjudication by conventional forms of remedy, or which, for other reasons, are not conveniently amenable to the usual remedies. Underlying the policy which sanctions the use of the action is the concept that it will serve some useful purpose to the parties, e.g., to settle controversy and discourage potential litigation.

Judge Crane, writing for the court in James v. Alderton Dock Yards (256 N. Y. 298) which has become a landmark case, summarized the development of the declaratory judgment in New York by noting that the "general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations" (p. 305).

The two cases cited in the James opinion for this summarization, Brownell v. Board of Educ., (239 N. Y. 369) and Sartorious v. Cohen (249 N. Y. 31), interestingly enough, did not discuss procedural theory, but pragmatically applied the appropriate substantive remedies brought up by the actions for declaration of rights. The general policy statement in James is quite consistent with the statute (CPLR 3001) as to a declaration of "rights and other legal relations of the parties to a justiciable controversy".

In this present case the wife, Ethel Krieger, obtained in Florida a divorce from the husband, Benjamin Krieger, in 1952. The parties had been separated since 1950. The wife was remarried in New Jersey to defendant Herbert Becker in 1964.

Four months after the remarriage, and 12 years after the Florida decree, plaintiff husband commenced this action for declaratory judgment to determine that the Florida divorce is void; that the "plaintiff is the lawful husband" of the defendant; and that the subsequent marriage of the wife in New Jersey "is a nullity".

The court at Special Term granted judgment for defendants declaring that the Florida court had jurisdiction of the parties and of the marriage and also decided that relief should not in any event be granted to plaintiff because of undue delay in seeking the declaration.

The Appellate Division, by a divided court reversed; to hold on the facts that the Florida court had not acquired jurisdiction of the marriage and to hold, as a matter of law, that there had been no estoppel by laches.

Although some of the Judges of this court are of opinion that the weight of evidence on the issue of the jurisdiction of the Florida court supports the decision at Special Term, a majority agrees that the decision of the Appellate Division on the facts is consistent with the weight of evidence. Thus the question that remains is whether a delay of 12 years in bringing the present action works an estoppel against plaintiff.

Essentially this narrows down to the question whether the husband was justified in waiting to bring the action over a very long period from the time he had knowledge of the foreign judgment, and until after his wife remarried.

It will be observed that the basic ground for the declaration sought is the invalidity of the Florida decree from the invalidity of which it is contended that "plaintiff is the lawful husband of" the wife. It could reasonably be thought that a declaration might have been made on those subjects as early as 1952, since the jural relations of the husband and wife are not made different or essentially changed by the additional circumstance of the 1964 remarriage and, as it will be observed, the marital status after the divorce was a continuing matter of controversy between the spouses from 1952 onward.

The reason for the refusal of the Appellate Division to apply the equitable principle of laches was that it did not appear to the court that the husband could have "effectively" brought "any action" to declare the divorce invalid before the wife's remarriage.

There are some decisions in New York, and some expressions in judicial opinions, which do point that way; but this court has never imposed such a limitation on the availability of declaratory judgment. There are significant policy reasons to lead to a holding that when one spouse believes the other has obtained an invalid foreign divorce, and is acting on the strength of it as though the marriage is legally at an end, the complaining spouse has a sufficient legal interest in the marriage to present a justiciable controversy.

This would come quite literally within the classic definition of James, i.e., that the declaration "serve some practical end in quieting or stabilitzing an uncertain or disputed jural relation either as to present or prospective ...


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