
    Robert F. Tysen, Appellant, v. Fay L. Tysen, Respondent.
    First Department,
    November 4, 1910.
    Husband and wife — annulment of marriage — former wife living — conflict of laws — foreign divorce obtained on service by publication.
    It is error to dismiss the complaint in an action for the annulment of a marriage brought on the ground that the defendant then had and still has a wife living, where it appears that although the former marriage was dissolved by the decree of a foreign court on the grounds of cruelty, the summons was served by the defendant- in the second action on the defendant in the former action by publication only, and the decree was entered upon his .default in appearing. Under such circumstances the prior divorce was void.
    The plaintiff in such action for annulment having proved that the defendant in the former action was a resident of a foreign State other than that in which the divorce was granted, is entitled to the presumption that that domicile continued.
    Appeal - by the plaintiff, Robert F. Tysen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡New York on the 23d day of June, 1910,-upon the decision of the court, rendered after a trial at the ¡New York Special Term, dismissing the complaint.
    
      Frederick N. Van Zandt, for the appellant,
    
      Grant C. Fox, for the respondent.
   Dowling, J.:

Plaintiff brings this action to have the marriage between himself and defendant annulled and declared void upon the ground that at the time it was performed defendant then had, and still has, a husband living, to whom she had been lawfully married.

At the close of plaintiff’s case the following facts were established, either by proof or by admissions made in the pleadings or in open court: The defendant, then Fayette Lewis, láwfully married Joseph H. Benrimo at the borough of Manhattan, city and State of Mew York, on February 5, 1899, and thereafter they lived together as husband and wife in that city. On September 17, 1902, under the name "of Fay Lewis Benrimo, she filed a bill of complaint in chancery against her husband for an absolute divorce in the Circuit Court for the county of Wayne, State of Michigan, which was based on charges of extreme cruelty. By order of such court, dated September 19, 1902, it was directed that the complaint in the action be served upon Benrimo by publication, such order being based upon an affidavit of the present defendant that Benrimo was not a resident of the State of Michigan, but resided at San Francisco, in the State of California. Thereafter, Benrimo not having appeared, his default was taken, and on January 20, 1903, a decree of the Circuit Court was duly made and filed on the following day, whereby the marriage between this defendant and Benrimo was dissolved. All of these proceedings were taken without Benrimo ever having been personally served with any papers in the action, and without his ever having appeared thereiiij either personally or by attorney. Thereafter, on September 19, 1903, at the city of Bridgeport, in the State of Connecticut, a marriage ceremony was performed between plaintiff and defendant, at which time they both were residents of the State of Mew,York. The plaintiff had offered in evidence all the proceedings had in the Michigan action and the record of the marriage of Fayette Lewis and Joseph H. Benrimo. All of these facts thus established' made out a grima facie case. The decree of divorce obtained under the circumstances related was void. . (Haddock v. Haddock, 201 U. S. 562; Atherton v. Atherton, 155 N. Y. 129 ; 181 U. S. 155 ; Olmsted v. Olmsted, 190 N. Y. 458; Winston v. Winston, 165 id. 555; Matter of Kimball, 155 id. 68; O'Dea v. O'Dea, 101 id. 23.)

Plaintiff had proved the place of residence of Benrimo, which was prima facie his domicile, and was entitled to the presumption of continuance of a domicile once acquired. If the court enter-tained any doubt as to the facts, and was not disposed to give plaintiff the benefit of the favorable inferences to be drawn from the testimony, to which he was entitled, then plaintiff should have been granted his perfectly -reasonable request to be allowed to put Benrimo on the witness stand, lie then being present in court.

The judgment appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., Clarice, Scott and Miller, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  