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1900]

of marriage was made, and where the statute forbade her divorce, to secure her freedom, under lax laws, upon an accusation that was as false as it was trivial. Her sole complaint in the Dakota court was that her husband had, "since May, 1895, wholly and wilfully failed and neglected to provide for her and her children the common necessaries of life." This accusation was untrue, as appears by the undisputed evidence in the present record. When the defendant lived with the plaintiff, he paid $30 a week for the board of his family. This was more than three-fourths of his income. He testified without contradiction that all the money he earned was spent upon his family. He produced checks and receipted bills for $545 that went directly to the family in the year 1895, in addition to cash given to his wife; and similar vouchers to the extent of $836 in 1897. These checks, and others for the sums spent in 1896, he handed to the defendant's counsel, and was proceeding to give further details, when the learned trial justice interposed with the observation that he did not "propose to go into an accounting for every check he spent." There was a still grosser imposition upon the Dakota court in the concealment from it of the fact that during the very period covered by its finding that the husband had wilfully failed to provide for his wife and children the common necessaries of life she was livng with the children apart from him, and resolutely refusing to return to her duty. The decree was made upon the 30th day of June, 1898, and the defendant abandoned her husband upon the 11th day of February, 1897. And yet it was for the failure to provide her with the common necessaries of life "for more than one year next preceding the commencement of the action" that the court granted her its decree. But for the suppression of the truth (as to the abondonment) and the affirmative statement of the untruth (as to the failure to provide the common necessaries of life), it is inconceivable that the Dakota court could have granted such a decree. It is entirely clear, therefore, that the defendant procured the decree in question upon the pretense of a bona fide change of residence, upon a sworn complaint which she knew to be untrue, and by the suppression of a fact which she also knew would necessarily be fatal

Osterhoudt v. Osterhoudt.

[Feb.

Appellate Division.

to her purpose. She had no reason to doubt the utter invalidity of the decree thus obtained, and the sequel clearly indicates that she placed but little reliance upon it. It is needless to say that she did not remain long in North Dakota after the decree there was signed. In the following October we find her again in this state. First, however, she seems to have gone to Jersey City, where, upon the 22d day of that month, she went through the form of a civil marriage with Wilson-the mayor officiating. Two days later she supplemented this with a religious ceremony at West Hampton, on Long Island, in this state, bringing herself within the rule of People v. Baker, 76 N. Y. 78, under which rule it is difficult to perceive how the defendant can escape the serious charge (of bigamy) connected with the commission of that act. It is quite evident that the offenses which are interwoven with the Dakota decree, and which permeate the defendant's conduct throughout, are mala in se. It seems to be a shocking judicial conclusion that the moral training of these two young girls is to be intrusted to one who, to speak moderately, has reached her goal in the manner which this record discloses. Are these children to be brought up in the atmosphere of the home thus created, and in the center of the principles upon which it rests? There is no reality here in the pretense of mistake. If the defendant did not know that the Dakota decree was fraudulent as well as void, it was because she lacked the moral sense to appreciate her own acts. She certainly did know, however, that it was a nullity when her husband brought this action. Her legal advisers did not fail to realize, and doubtless to advise her of, the situation in which she was then placed. The law, as expounded by the court of appeals, was not of recent origin. For many years it had been impressed upon our jurisprudence in firmly repeated adjudications. Did she then recede from her false position? Did she retire from the adulterous association? No. She still covered herself with the thin and unclean veil of the Dakota decree, and kept on her determined course, still living openly with the man of her later choice, and utilizing the interval until the trial in poisoning the children's minds against their father. The youngest of

1900]

* * *

these children was asked how she became impressed with the idea that her father had not been kind to her mother, and her reply was: "Because mamma has told me things that he did, and I believe her." The following questions were then put to her by the learned trial justice, and she gave the following answers: "Q. Hasn't somebody else besides your mother told you things? A. No. Q. No one besides your mother has told you anything about your father? A. No. Q. We are speaking about your mother. What did he ever do that you saw that was unkind? A. He never did anything to her. He never gave her anything. Q. He never gave her anything? A. No. Q. Is there anything else? A. I don't know. Q. If you think of anything * * * that your father ever did to your mother that was unkind, that you saw, I want to know it. A. I think all children love their mothers better than they do their fathers. Q. I don't want to annoy you, but, as I have got to decide this case, I want you to tell me any reason that you have for thinking that your father was an unkind father, or an unkind husband,―anything you can think of. You need not be at all afraid to tell me. Can you think of anything? A. No. Q. You can't think of anything? A. No."

Osterhoudt v. Osterhoudt.

As already pointed out, there is nothing in the record even suggestive of cruelty or unkindness on the part of the plaintiff. His only crime in the eyes of the defendant seems to have been his limited income. The "things" which she told to this little child "that he did" have apparently been told to no one else; certainly not to the court. Are these children, then, to be taught to hate their blameless father, and to love his successor? Are they to learn, as they grow up, that there is no inherent sanctity in the marriage bond, that duty is an old-fashioned notion, that the desire of the heart or the craving of the senses is the essential thing, and that all acts are righteous which lead to their gratifition? It would be better for these children-better for their future here, and better for that wider future which lies beyond -that they should share the modest and humble environment of their innocent father than enjoy the material advantages, or even a mother's love, at the expense of principle and morality.

Appellate Division.

Their choice should not weigh with us for a moment. If they desire to live with the daily and hourly spectacle of this new home before their eyes, their moral sensibilities have already been blunted, or else they are too young to appreciate the situation. In either case a court of justice should not fail to guard and guide them correctly. The sorrow of the moment will be effaced when they realize, under less "progressive" and more righteous teachings, what it is from which they have escaped. I cannot but think that the affirmance of this provision of the judgment appealed from would be a lasting stain upon the records of the court. Before such a precedent is made,-rewarding the guilty, punishing the victim, and dooming the children to participation in successful evil,-there should at least be pro

test.

[Mar.

The judgment so far as appealed from, should therefore be reversed, and the custody of the childen awarded to the plaintiff.

VAN BRUNT, P. J., concurs.

LOUCKS v. HALLENBECK et al.

[48 App. Div. 426; 97 St. Rep. 1; 63 Supp. 1.]

(Supreme Court, Appellate Division, Third Department. March 20, 1900.)

1. JUSTICE OF THE PEACE-SUMMONS-SERVICE-DEPUTATION-REQUEST. Where plaintiff's agent had possession of the note sued on, demanded its payment, and commenced action thereon, his request that he be depu tized to serve the summons was at plaintiff's request.

NOTE.-DEPUTATION TO SERVE PROCESS OF JUSTICE OF THE PEACE.

A justice of the peace, who issues any mandat authorized by this chap ter, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a writen authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve, or otherwise execute it.

§ 3156, Code of Civil Procedure.

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2. SAME

AGENT OF PLAINTIFF.

The agent of the plaintiff does not come within the inhibition of the statute which precludes the plaintiff himself from serving the summons, Herrick, J., dissenting.

Appeal from Albany county court.

Action by John A. Loucks, as executor, etc., against William F. Hallenbeck and others. From a judgment of the county court reversing a justice's judgment in favor of plaintiff, he appeals. Reversed.

On the 11th day of October, 1898, the justice of the peace at the request of Orison L. Hannay, issued a summons directed to the defendants. The complaint was at that time filed with said justice, sworn to by the plaintiff before said Orison L. Hannay, a notary public. Upon the summons and complaint, the justice made an indorsement deputizing O. L. Hannay to execute the within instrument. The summons and complaint were served by the said Hannay upon the defendants, and his return duly

DEPUTATION TO SERVE PROCESS OF JUSTICE OF THE PEACE,-continued.

Oral proof of service made by a person deputed to make it, although entered in the justice's docket, will not confer jurisdiction on the justice to render a judgment by default against the defendant.

Jackson v. Sherwood, 50 Barb. 356.

In the case last cited, Mason, J., said, "The person so deputed by the justice, to execute the process, must execute it in the same manner as the statute requires the constable to do it. He stands in the place of the constable, in the performance of the service of the summons, and the statute declares that he shall possess in relation to the execution of the process all the authority of the constable, and shall be subject to the same obligations. The statute declares his authority the same, and his obligations the same. I entertain no doubt he must serve a summons, and make a return in writing in the same manner as a constable, to confer jurisdiction upon the justice."

The plaintiff cannot be deputized by the justice to serve the summons. Waring v. Keeler, 11 Misc. 451; 67 St. Rep. 417; 33 Supp. 415; 24 Civ. Pro. 427.

In this case the plaintiff relied upon Tuttle v. Hunt, 2 Cow. 436, and Putnam v. Man, 3 Wend. 202, which held that the plaintiff could serve the sunimons, if himself a constable or deputized to do so by the justice. The

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