Opinion
November 17, 1947.
In an action for separation, judgment dismissing complaint on the merits reversed on the law and the facts, with costs, judgment of separation granted to the wife on the facts, with costs, and the matter remitted to the Special Term to determine alimony and incidental relief. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. The Florida decree of divorce obtained by defendant in an action in which plaintiff wife was not personally served and in which she did not appear carries with it the import that the issue of domicile has been passed upon by a court whose determination is entitled to respect. There the matter should rest unless the countervailing evidence adduced by the wife satisfies the court of this State that error was committed. The proof does so in this case. The inference to be drawn therefrom is that at all times during the course of the purported domicile of defendant in Florida the husband was actively engaged in business in this State and that his testimony to the contrary in the State of Florida was false and constituted the imposition of a fraud upon the court of that State. The inference became an established fact when the defendant refused to testify. He had returned to this State with a new wife shortly after the making of the Florida decree. We are of opinion that the allegations of the complaint in the second and third causes of action were sustained by competent and undisputed proof. Hagarty, Acting P.J., Johnston, Adel and Sneed, JJ., concur; Nolan, J., not voting. Settle order on notice.