Wolman v. Wolman

Rubenstein, J. In this separation action the defendant husband seeks an injunction restraining and enjoining the plaintiff wife from proceeding with an action for absolute divorce in the State of Florida. Most of the cases in which injunctions have been granted are those where the action itself has been one seeking a permanent injunction (Gwathmey v. Gwathmey, 116 Misc. 85, affd. 201 App. Div. 843; Johnson v. Johnson, 146 Misc. 93; Dublin v. Dublin, 150 Misc. 694; Jeffe v. Jeffe, 168 Misc. 123; Selkowitz v. Selkowitz, 179 Misc. 608; Greenberg v. Greenberg, 218 App. Div. 104), or where the plaintiff wife has sought to restrain her husband from prosecuting a foreign divorce which might render ineffectual the judgment of separation which she obtained in the New York courts. (Richman v. Richman, 148 Misc. 387; Ashkenaz v. Ashkenaz, 180 Misc. 580; Adams v. Adams, 180 Misc. 578; Krupp v. Krupp, N. Y. L. J., [603] July 16, 1943, p. 113, col. 4.) The right to relief in the latter type of cases is apparently predicated upon the provisions of section 878 of the Civil Practice Act, which reads: “ § 878. Injunction, when the right thereto depends upon extrinsic facts. “ In either of the following cases an injunction order may also be granted in an action: “ 1. Where it appears that the defendant, during the pend-ency of the action, is doing or procuring or suffering to be done, or threatens, or is about to do, or to procure or suffer to be done, an act in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom. “ 2. Where it appears that the defendant during the pendency of the action threatens or is about to remove or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition.” In .the case at bar, the defendant does not ask for affirmative relief by way of counterclaim and consequently does not come within the purview of the foregoing authorities or the provisions of the Civil Practice Act adverted to above. In the circumstances, defendant’s motion is denied.