
    Norman Annexstein, Appellant, v Joan Annexstein, Respondent.
   —Order, Supreme Court, New York County, entered April 1, 1975, unanimously reversed, on the law, plaintiff-appellant’s motion to discontinue granted, and defendant-respondent’s cross motion for injunction of plaintiff-appellant denied, without costs and without disbursements. Plaintiff husband instituted action for divorce, citing several grounds. The wife petitioned Family Court for relief, and secured an order for support for herself and the child of the marriage, as well as an order of sequestration. In her answer in Supreme Court, she advanced several affirmative defenses, seeking no affirmative relief whatever in that action. The husband moved to discontinue. Special Term denied the motion, misapplying Schneider v Schneider (32 AD2d 630), in which such a motion had been denied because plaintiff wife therein would have been "prejudiced by losing the benefits of the support order awarded to her.” There is no such prejudice here. The wife has and will continue to have despite the discontinuance, the "benefits of the support order awarded to her” in Family Court; no other affirmative relief will be lost to her by discontinuance for she has sought none. Nor should the injunction stand. (See De Raay v De Raay, 255 App Div 544.) The husband’s alleged intention to commence a new action in Florida adds nothing to the circumstances. "The provision of the judgment restraining defendant from * * * prosecuting an action for divorce in any State other than New York was also improper. The right to maintain a divorce action is predicated upon legitimate domicile. All States of the Union are open to establishing domicile therein. A permanent injunction restraining a person from establishing in the future a bona fide domicile in any other State of the Union even though one of its purposes may be to institute an action for divorce is unauthorized. (Estin v Estin, 334 US 541.)” (Sivakoff v Sivakoff, 280 App Div 106, 108.) Concur — Markewich, J. P., Kupferman, Murphy and Nunez, JJ.  