Eischen v. Eischen

Per Curiam. The action was for the annulment of a marriage. The complaint alleges that both plaintiff and defendant are residents of the State of New York which, if proved, gave the court jurisdiction of the cause of action. Until there was a failure of proof of residence of both parties, the complaint should not have been dismissed. Although not alleged in the complaint, plaintiff offered proof that he had always resided in the State of New York, that he married the defendant in Virginia, that they returned to New York State and a few months later defendant returned to her former home in Virginia for a visit, but did not return to plaintiff’s home in this State. These facts, if alleged in plaintiff’s complaint and proved on the trial, would give the court jurisdiction under subdivision 3 of section 1165-a of the Civil Practice Act. The trial court was in error in holding that the subdivision requires that plaintiff must reside in this State for one year after the marriage. The language of the statute is clear and permits a plaintiff to bring an action to annul the marriage or for a separation: ‘ ‘ 3. Where the parties were married without the state, and either the plaintiff or the defendant is a resident of the state when the action is commenced, and has been a resident thereof for at least one year continuously at any time prior to the commencement of the action.” Nowhere in the statute is there any requirement that the plaintiff’s residence in this State must be for a period of one year after he married the defendant, and the court cannot add those words to a statute which is clear and unambiguous. The statute was amended on the recommendation of the Judicial Council “ in order to relax the severe and arbitrary restrictions presently imposed upon suits for separation.” (Eighth Annual Report of N. Y. Judicial Council, 1942, p. 354.) Nowhere in the [593] report is there any indication that it was intended to place any further restraint on the jurisdiction of the court in annulment actions. The court should not be concerned with the wisdom of the statute; that is for the Legislature to determine. If plaintiff is unable to prove that both parties were residents of the State when the action was commenced, we thixxk he should be permitted to amend his complaint to allege the jurisdictional facts in accordance with his offer of proof. (Dulso v. Dulso, 170 App. Div. 67.) Of course he could not amend to ask for further or different relief than was demanded in the original complaint (Clapp v. McCabe, 155 N. Y. 525), as the defendant has not appeared personally in the action. The judgment should be reversed and a new trial granted.