Opinion
July 3, 1944.
Action to annul a marriage and for a permanent injunction. Order denying defendant's motion to dismiss the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action, affirmed, without costs, with permission to the defendant, within ten days from the entry of the order hereon, to serve an answer in which she may plead any and all matters upon which she relies to defeat the action. The complaint is broad enough to include an action to set aside the separation agreement, as well as an action for annulment of the marriage. The question of res judicata should be determined upon a trial after issue is joined rather than upon this record. ( Durham v. Durham, 99 App. Div. 450; Kronman v. Kronman, 247 App. Div. 186.) It does not appear that the Idaho court made any determination with respect to any property rights of the parties and the decree in such case would not be res judicata on the validity of the separation agreement. We express no opinion upon the effect of the Idaho decree. That matter can be more properly determined when all the facts have been developed upon a trial. Order granting plaintiff's motion for a stay of an action in New York County pending the hearing and determination of this action, reversed on the law and the facts, without costs, and the motion denied, without costs, without prejudice to an application for a stay in the New York County action. ( Van Beuren v. Van Beuren, 249 App. Div. 650 [2d Dept.]; Matter of Lowe Pharmacy, Inc. [ Kramer], 249 App. Div. 845, 846 [2d Dept.]; LaVin v. LaVin, 264 App. Div. 887 [2d Dept.]; Indestructible Metal P. Co., Inc., v. Summergrade, 197 App. Div. 199 [1st Dept.]; Carmody, New York Pleading and Practice, Vol. 11, § 892.) Carswell, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ., concur. [See post, p. 861.]