
    Ruby Brill, Respondent, v. Joseph Brill et al., Appellants.
    Argued October 9, 1961;
    decided November 16, 1961.
    
      
      Jacob W. Friedman and Abraham J. Brill for appellants.
    I. Appellants have made a sufficient showing to satisfy the requirements for documentary evidence required by subdivision 4 of rule 113 of the Buies of Civil Practice. II. Bespondent failed to controvert denials of appellants and, therefore, motion was rightfully granted. (Gelb v. Mazzeo, 5 A D 2d 10; Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25; Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56; Di Sabato v. Soffes, 9 A D 2d 297; Dwan v. Massarene, 199 App. Div. 872; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; United States v. Stephanidis, 41 F. 2d 958.) III. There are no triable issues of fact and Special Term was correct in granting summary judgment for defendant.
    
      Irving I. Erdheim and Louise Gruner for respondent.
    I. In a matrimonial action summary judgment may be granted only where the motion is supported by documentary evidence or official records sufficient to establish a defense to the action. (Kraunz v. Kraunz, 183 Misc. 724; Closson v. Seaford Sand & Gravel Corp., 238 App. Div. 584; Presbrey v. Presbrey, 6 A D 2d 477; Miller v. Hine, 281 App. Div. 387.) II. In a matrimonial action where in support of a motion for summary judgment movants have failed in the first instance to submit documentary evidence or official records sufficient to establish a defense to cause of action, their moving papers are insufficient, as a matter of law, and appellant was not required to come forward with evidence. (Hallgarten v. Wolkenstein, 204 App. Div. 487; State Bank v. Mackstein, 123 Misc. 416; Jacobs v. Korpus, 128 Misc. 445; German v. Snedeker, 257 App. Div. 596, 281 N. Y. 832; Lonsky v. Bank of United States, 220 App. Div. 194.)
   Van Voorhis, J.

The action is for declaratory judgment determining that the defendants, Joseph Brill and Beverly Stiansen, are not husband and wife for the reason that Brill had been married to plaintiff and the Mexican decree of divorce between them alleged in the complaint is invalid. Judgment is asked annulling the subsequent marriage between Brill and Stiansen and directing that she be enjoined from using the name of Beverly Brill. Special Term granted a motion by defendants for summary judgment dismissing the complaint. The Appellate Division reversed, Stevens, J., dissenting, upon the sole ground that a defense is not made out by documentary evidence as required by subdivision 4 of rule 113 of the Rules of Civil Practice in order to obtain summary judgment.

We agree with the result reached by Special Term. Documentary evidence was furnished on which the summary judgment was founded. This is in the form of certificates by the Secretarios Del Juzgado of the First, Second and Third Civil Courts, Bravos District, Chihuahua, Mexico, duly authenticated by the Vice-Consul of the U. S. A., dated September 29, 1960, stating that they have searched the files of the court since the year 1954 but that no divorce action instituted by Joseph Brill against Ruby Brill has been registered. That is the court in which the Ninth paragraph of the complaint alleges that defendant Joseph Brill obtained the divorce against plaintiff which the complaint asks be adjudged to be invalid. The certificates of the Mexican court that no divorce proceedings have been entered in their records are adequate documentary evidence to satisfy the requirement of subdivision 4 of rule 113, and defendant Joseph Brill has interposed his affidavit that no divorce was ever obtained.

That leaves the complaint with no more substance than an allegation that defendants are living in a meretricious relationship and that defendant Brill and Beverly Stiansen should be enjoined from holding Stiansen out as Brill’s wife. A judgment in a separation action was entered June 16, 1955 between plaintiff and defendant Brill, determining plaintiff to be his wife. That at least has been held to be enough to defeat an action for declaratory judgment, inasmuch as the fact of the marriage, essential to jurisdiction in a separation action, has already been judicially established (Garvin v. Garvin, 306 N. Y. 118), regardless of what basis plaintiff might have had to sue for declaratory judgment if an invalid foreign decree of divorce had been entered subsequent to the judgment in the separation action (cf. Presbrey v. Presbrey, 6 A D 2d 477). She is not entitled to that relief where the divorce decree alleged in the complaint was not obtained. There has been no matrimonial decree purporting to alter the matrimonial status of the parties since the separation judgment determined them to be husband and wife. That does not present a case for declaratory judgment.

The order appealed from should be reversed and the certified question answered in the affirmative.

Burke, J. (dissenting).

We dissent and vote to affirm. In this action for a declaratory judgment as to marital status, the question is whether the appellants are entitled to summary judgment on the ground that they made a sufficient showing to satisfy the requirement for documentary evidence ” required by subdivision 4 of rule 113 of the Buies of Civil Practice.

It is contended by the appellants that documentary evidence sufficient to satisfy the rule was furnished in the form of New York decree of separation and certificates by the Clerks of the First, Second and Third Civil Courts, Bravos District, Chihuahua, Mexico, stating that they had searched the files of the court but that no divorce action instituted by Joseph Brill v. Buby Brill has been registered.

Although of less importance than the court certificates, the decree of separation made in 1955, it is proper to note, is not a relevant official record which would support summary judgment in view of defendant Brill’s claim uttered during the 1959 New Bochelle raid that defendant Stiansen was “ the real Mrs. Brill ’ ’ and that he had divorced plaintiff in Chihuahua. During the four years that had elapsed since the date of the separation decree, defendant could very well have secured a divorce in Chihuahua. In that event, the separation decree would have no bearing as defense material on the issues in this action.

One readily perceives that the rule calls for 11 documentary evidence” or “ official records ” that are conclusive. Therefore, since the rule is of recent origin, a grant of summary judgment on the strength of the certificates submitted by defendants is, in our minds, folly.

We believe that summary judgment should be withheld while the trustworthiness of a document remains untested, and where there is direct evidence which casts doubt on the document’s validity.

After all, the certificates simply express the opinion of confident records examiners or the superior of the records examiners. They are negative evidence which though admissible at a trial is acceptable at that time only because the question of the accuracy of the certificates is still open to impeachment as any opinion would be.

It is well known that there are thousands of divorce decrees granted in the State of Chihuahua, Mexico, every year. The certificates offered in this case have a testimonial value which varies in proportion to the competence of the system used for the maintenance of the court records, and the skill and thoroughness of the searcher. They are not—like an authenticated copy of a document—conclusive, but merely evidence which may be erroneous. We do not think that such an untested hearsay statement constitutes “ documentary evidence or official records” sufficient to establish a defense to the action” within the meaning of subdivision 4 of rule 113 of the Rules of Civil Practice. Where the documentary evidence is inconclusive and exposed to the chance of error, a court is not warranted as a matter of law in directing judgment before a trial. We must presume that the Legislature intended that the documentary evidence submitted as a defense to a matrimonial action should be beyond dispute.

But even if such certificates could be considered documentary evidence, a trial should be held for the rule provides: ‘ ‘ The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages.” On this record there is an unresolved contradiction between defendant Brill’s declarations and the examiners’ conclusions set forth in certificates which are secondary evidence. Here the tenor of the undenied declaration made orally by the defendant Brill conflicts squarely with the contents of the certificates offered by the defendants.

Appellants have not produced documentary evidence which completely negates the existence of the fact issue raised by the pleadings and affidavits. • Since, therefore, appellants’ papers are insufficient to establish the absence of triable issues, the motion for summary judgment was properly denied.

Accordingly, the order of the Appellate Division should be affirmed, and the question certified answered in the negative.

Judges Dye, Fuld, Froessel and Foster concur with Judge Van Voorhis; Judge Burke dissents in an opinion in which Chief Judge Desmond concurs.

Order of the Appellate Division reversed and the judgment of Special Term reinstated, without costs. Question certified answered in the affirmative.  