#### Elizabeth S. Sterry, Plaintiff, *v.*James W. Sterry, Defendant.

(Supreme Court, New York Special Term,

February, 1913.)

Divorce — foreign — husband and wife — action, for separation from one to whom plaintiff was not legally married.

Where, after a man and. wife, who were married in this state, had separated therein, he obtained a foreign decree of absolute divorce in an action in which she, a resident of this state, did not appear or answer, and of which she did not know until several years after the decree had been granted, such decree is void; and she cannot maintain an action for a separation against one whom she subsequently married.

Action for a separation upon the grounds of cruelty and nonsupport.

May & Jacohson, for plaintiff.

Man & Man (Hyacinthe Ringrose, of counsel), for-defendant.

Newburger, J.

Plaintiff seeks a separation from defendant upon the grounds of cruelty and nonsupport. Plaintiff on the twenty-fifth day of December, 1894, was married to one Rennie in the city of New York. Subsequently they separated in the state of New York. In December, 1901, Rennie instituted a suit for an absolute divorce against his wife (the plaintiff herein) in the city court of Elgin, Ill., alleging that, his wife was not a resident of Illinois, but resided on One Hundred and Ninth street, in *356Harlem, Hew York county, in the state of Hew York. The court, upon petition that the wife was not a resident of the state of Illinois, directed service of the summons hy publication. The record' shows that the wife did not appear or answer. The plaintiff herein testified in this action that she never was served in the Illinois action, and had no knowledge for several years thereafter that a decree of divorce had been granted to her husband, Albert S. Rennie. In People v. Baker, 76 N. Y. 82, which is the leading case in this state, the court held “ that the court in another state cannot adjudge to be dissolved and at an end the matrimonial relation of a citizen of this state, domiciled and actually abiding here throughout the pendency of the judicial proceeding there, without a voluntary appearance therein, and with no actual notice to him thereof, and without personal service of process on him in that state.” In Matter of Kimball, 155 N. Y. 62, it was held that: “A personal judgment of a court of a sister state, entered against a resident of this state, when there has been no personal service of process upon him in the jurisdiction of that state or appearance by him in the action by which jurisdiction of his person could be acquired, is void and of no force or effect in this state. Service of a summons within this state upon a resident thereof, * * * unless he answers, demurs or appears, does not give the court of a sister state jurisdiction, and a decree rendered against the defendant under such circumstances will not uphold, in the courts of this state, a marriage subsequently contracted here between the plaintiff in the divorce suit and a third party.” The contention of the plaintiff that the statute of the state of Illinois providing that a divorce by default could only be set aside within three years is untenable. If the judgment was void by reason of want of jurisdiction this statute referred to would not give it greater effect. I am, therefore, of the opinion that the decree of divorce against the plaintiff herein by her former husband, Albert S. Rennie, was void and that there was no legal marriage between the parties to this action.

Ordered accordingly.