Ray Dornfeld, Appellant, v. Samuel Dornfeld, Respondent

Ray Dornfeld, Appellant, v. Samuel Dornfeld, Respondent. First Department, February 17, 1922. Husband and wife — divorce — decree providing for custody and care of issue of marriage res judicata as to their legitimacy — question of legitimacy cannot be decided on subsequent motion to amend final judgment so as to provide for support and maintenance of children. Where the complaint in an action for divorce alleged “ that there is issue now living of the said marriage between the plaintiff and the defendant ” and named two children as such issue, and this was found as a fact by the court in its decision, the decree providing for the custody and care of the issue of the marriage, meaning the two children, is res judicata as to their legitimacy, and the question as to the legitimacy of one of the children cannot be decided on a motion for an order amending the final judgment by adding thereto a direction that defendant pay for the support and maintenance of the children. Appeal by the plaintiff, Bay Dornfeld, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1921, denying plaintiff’s motion for an order amending the final judgment of divorce by adding thereto a direction that the defendant pay to the plaintiff thirty dollars weekly as and for the support and maintenance of the two sons of the parties. Rudolph Stand, for the appellant. Isaac Hyman, for the respondent. [MAJORITY — Merrell, J.:] Merrell, J.: On this motion made at the foot of the decree, for alimony for the support of two infant children, pursuant to the provisions of the decree that such application could be made, the justice at Special Term decided the issue of the legitimacy of one of the children raised by conflicting affidavits. The impropriety of assuming to pass upon an issue so important in this informal manner is obvious. Apart, however, from the manner in which the issue was raised, the matter was res adjudicata. The complaint in the action alleged “ that there is issue now living of the said marriage between the plaintiff and the defendant,” and names the two children as such issue. This was found as a fact by the court in its decision, and the decree provides that the custody and care of the issue of the marriage, meaning the two children, be awarded to the plaintiff and that she might make future application to the court for alimony and for the support of the issue of the marriage. While this decree remains the question of the legitimacy of these children cannot be presented for judicial investigation by the parties to this action. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the matter remanded to Special Term for such action as may be deemed proper. Clarke, P. J., Laughlin, Dowling and Page, JJ., concur. Order reversed, with ten dollars costs and disbursements, and the matter remanded to the Special Term for such action as may be deemed proper.