Opinion
September 15, 1964
Order, entered on August 17, 1964, granting plaintiff wife's motion for a temporary injunction to restrain defendant husband from prosecuting an action for divorce by defendant husband against plaintiff wife in the State of Texas, unanimously reversed on the law, on the facts, and in the exercise of discretion, without costs to either party, and the motion denied, without costs. In the light of defendant husband's showing of substantial indicators of Texas domicile, plaintiff wife's evidence of his domicile in New York was not sufficient to warrant the extraordinary relief of a temporary injunction to restrain prosecution of an action in a sister State (see Rosenstiel v. Rosenstiel, 15 A.D.2d 880). If plaintiff wife be so advised, however, she is free to apply to Special Term for an expeditious trial of the relatively simple issue in this action, provided she offer reasonable accommodation to defendant husband, to the satisfaction of Special Term, in obtaining and offering whatever out-of-State evidence is properly required. In no event should the proceedings in this action, other than perhaps a final judgment, be made responsible for any delays in the action for divorce in Texas or the action for separation in New York.
Concur — Breitel, J.P., Valente, Eager and Steuer, JJ.; McNally, J., concurs on constraint of Rosenstiel v. Rosenstiel ( supra).