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against him the decree of the Chancery Court of New Jersey and further enforcing against him the order of that court which provided for the enforcement of the decree by the appointment of a receiver and by an injunction. She was held entitled to judgment against the defendant for the amount of alimony, counsel fee and costs due, or incurred, under the New Jersey decree; for the amount of alimony accrued since the decree; that he pay to her the sum of $80 a week from the date of the decision, as and for permanent alimony; that he This action, however, is upon a final decree of give a bond in the sum of $100,000 to secure the the Chancery Court of New Jersey, which rendpayment of the several sums of money specified, ered a money judgment in personam against the and that, upon his failure to comply with the provi- defendant in a proceeding in which there was a sions of the decision, a receiver might be ap- voluntary appearance on his part. Upon service pointed, ancillary to the receiver appointed by the of the order of the chancellor, directing him to Court of Chancery of New Jersey. Exceptions show cause why the petition of the plaintiff for the were filed to the decision, and, thereafter, judg- amendment of the decree of divorce should not be ment was entered in conformity with the decision. granted, he appeared in the proceeding without The Appellate Division, upon the defendant's ap- any reservation of record, and without making any peal, modified the judgment so as to adjudge that objection to the jurisdiction of the court. Not the plaintiff recover of the defendant the sum of only was that so, but in his affidavit, which was $8,840, and, as so modified, affirmed it. The filed in the proceeding, he asserted that he had amount of the recovery, as allowed by the Appel- | been divorced from his matrimonial relations upon late Division, represents the only and the precise the plaintiff's petition; that he had subsequently amount of money, which the final decree of the married again and his objections to the granting court in New Jersey adjudged to be due and pay-of the plaintiff's petition were carefully formulated. able from the defendant to the plaintiff, at the date❘ He alleged that "the decree for divorce

of its rendition. Cross appeals were taken by the plaintiff and defendant from the judgment of the Appellate Division; the plaintiff because of its modification, and the defendant because of its affirmance of the judgment of the trial court.

was purposely drawn without providing for, or reserving any alimony," etc.; that he was financially unable to pay alimony," and "that the said decree of divorce having been made without reserving the question of alimony, and this defendant having been absolutely divorced from said

petitioner by said decree, and having since formed new relations and matrimonial obligations, that it would be illegal, inequitable and unjust to now impose upon him the burden of alimony," etc. In short, he appeared and submitted himself to the jurisdiction of the court, appealing to its consideration of the facts, and not objecting to its power to proceed; not repudiating the divorce, but relying upon it. There cannot be the slightest question that his appearance was general. He wa represented by counsel, until the order of the chancellor, which amended the decree of divorce by reserving to the petitioner the right to apply at the foot thereof for alimony, and to the court the power to make any further order with respect thereto, had been affirmed by the Court of Errors and Appeals, upon his own appeal, and until the application for a reference to determine the amount of alimony. Is he, then, in a position to invoke the invalidity of the original decree of divorce? As he was not personally served; and did not appear in the divorce action, the decree divorcing the plaintiff could not have given her any judgment in personam. It did not reserve the right to apply thereafter for alimony, when jurisdiction in personam was obtained of the defendant; but that was an unintentional omission, as the

James Westervelt, Henry B. Gayley and Matthew C. Fleming, for plaintiff; John H. Kemble,

for defendant.

GRAY, J.-I think that the Appellate Division has very correctly decided the questions in the case, and the opinion of Mr. Justice Bartlett, speaking for that court, leaves little, if anything, to be added to its reasoning. With respect to the main question, whether the Court of Chancery of the State of New Jersey acquired jurisdiction over the defendant to render the final decree for the payment of alimony, it is argued, in his behalf, that the decree of divorce was invalid as to him, and, therefore, afforded no support for the decree of alimony. That the decree of divorce was of no force as to him cannot be disputed. It is quite settled, at the present day, that no State can exercise jurisdiction and authority over persons or property without its territory. Its laws and the judgments of its tribunals can have no extraterritorial operation, except so far as the former may be allowed such by comity. The decree of divorce which the plaintiff obtained in New Jersey was effectual to determine her status as a citizen of that State towards the defendant, but as to him it effected nothing, and was void for want of personal service of process or of an appearance by

him in the divorce proceedings. One or the other of these conditions was required to be shown to enable the court to proceed with jurisdiction in personam. As the service of process was constructive by publication, however authorized by the laws of the State, it was ineffectual against the defendant for any purpose (People v. Baker, 76 N. Y. 78; Matter of Kimball, 155 id. 62; Pennoyer v. Neff, 95 U. S. 714; Story's Conflict of Laws, sec. 539).

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chancellor decided which was due to the inadvertence of plaintiff's counsel, and would be remedied by amending the decree. The affirmance of the order, in that respect, on defendant's appeal, settled the law of that State to be, that the court may, upon petition, amend its enrolled decree, when the amendment is necessary to give full expression to its judgment and is matter which would, without doubt, have been incorporated in the decree when made, if attention had been called to it (Lynde v. Lynde, 54 N. J. Eq. 473). The demand for alimony in a divorce suit is not an essential part of the cause of action, but is merely incidental to the action and the judgment (Forest v. Forest, 25 N. Y. 501; Galusha v. Galusha, 138 id. 272, 281; Lynde v. Lynde, supra). In Kamp v. Kamp (59 N. Y. 212) the question was not up as to whether the court might amend its judgment granting divorce, simpliciter, where the omission to reserve the question of alimony was shown to have been through inadvertence. The application there was for an order directing the payment of alimony, upon a judgment of divorce which was silent as to alimony, and it was held that the power to allow it in subsequent proceedings does not exist, in view of the legal presumption that the judgment had finally decided every question involved in the action, which would include the right of the plaintiff to claim alimony.


In my opinion, assuming, as we must, that the decree of the Chancery Court, which amended the original decree of divorce, expressed the law of the State of New Jersey (Laing v. Rigney, 160 U. S. at page 542), jurisdiction was obtained over the defendant, by his appearance, plea and submission, to so far cure the invalidity of the divorce decree as to render it effective as a basis for alimony proceedings. But whether its invalidity was cured, or not, in the subsequent proceeding to which the defendant was a party, a final decree was entered adjudging that he pay to the plaintiff a certain sum of money. The jurisdiction once obtained could not be divested by his refusal to appear in the later stages of the proceeding. He cannot now attack the final decree of the court collaterally after having had his day in court. In Laing v. Rigney (supra), after the wife had filed a bill against her husband in the Court of Chancery, in the State of New Jersey, alleging acts of adultery and the defendant had appeared and answered denying the allegations, the plaintiff filed a supplemental bill, wherein she alleged that the defendant had committed adultery with a person named, since the commencement of the suit, and prayed that she might have the same relief against the defendant as she might if the facts had been stated in the original bill. Process upon the supplemental bill could not be served personally upon the defendant, who was a non-resident, and there was substituted service by publication. He filed no answer to the supplemental bill, nor did he

appear, and a final decree was rendered by the chancellor granting the divorce and awarding alimony, etc. An action was then brought in this State by the wife upon the decree, to recover against her husband the amount awarded for alimony and costs, and the question was whether the New Jersey court had jurisdiction to render the decree. In the Supreme Court of the United States, to which the case was taken from this court (127 N. Y. 408), by writ of error, it was held that, in affirming the dismissal of the plaintiff's complaint upon the trial, due effect had not been given to the provisions of Article 4 of the Constitution of the United States, which require that full faith and credit shall be given in each State to the judicial proceedings of every other State. It was conceded that if the judgment of the Court of Chancery was not binding upon the defendant therein, personally, in that State, no such force could be given to it in the State of New York; but it was held that the law of the State of New Jersey must be deemed to be as declared by the chancellor, who had rendered a final decree, based upon the original bill, the process under which had been served upon the defendant within the State, and upon the supplemental bill, a copy of which, with the rule to plead, had been served upon the defendant without the State. It was said that "so long as this decree stands, it must be deemed to express the law of the State. If the defendant deemed himself aggrieved thereby, his remedy was by appeal." In other words, the Supreme Court of the United States held that the New Jersey court having once acquired jurisdiction of the defendant in the action, whether it retained that jurisdiction, so as to render the final decree in the proceedings leading thereto, was a question depending upon the law of that State, which could not be attacked collaterally.

Laing v. Rigney is much in point; inasmuch as jurisdiction of the defendant, in this case, having been obtained in the proceeding, it was retained by the court until it made the final decree. The jurisdiction conferred the power to render the decree, and it will be regarded as valid and binding until set aside in the court in which it was rendered (Kinnier v. Kinnier, 45 N. Y. p. 542).

Ward v. Boyce (152 N. Y. 191), has no application. The action was upon a promissory note, made by the defendant to the plaintiff's order, and the issue between the parties was as to the plaintiff's ownership. The defendant claimed that the record of a certain proceeding in a justice's court in the State of Vermont, was conclusive evidence that the note was not her property, but was that of her husband. The proceeding in the Vermont court was by way of trustee process and was instituted by a creditor of Mr. Ward, this plaintiff's husband, against him and Boyce, the maker of the note, as his debtor. Ward was a non-resident, did not appear and judgment went against him by de

fault. Boyce, the other defendant, appeared and stated that he gave the note to Mrs. Ward for cattle purchased, and he asked that she be cited to appear. A citation was served upon her, in the State of Vermont, to show cause why the note should not be adjudged to be held as her husband's property by his creditor. She did not appear and judgment was rendered in conformity with the terms of the citation. We held that the judgment did not conclude Mrs. Ward, because she was not a party to the proceeding and was cited to appear at a stage of it, when she had no opportunity to litigate the fundamental issue. The principal fact had then been adjudged, that the indebtedness for the cattle, for which the note was given, was owing to the husband; and this in a special statutory proceeding, in which the court had acquired no jurisdiction by service of any process upon him, or upon his wife, who held the note. When she was cited, it was not that she might contest the validity of the judgment against her husband, but merely to show cause why the note she held should not be adjudged as her husband's property and to be held by his creditor. I can perceive no resemblance in the principle of the decision in Ward v. Boyce to that involved here.

Lynde (supra), referring to the law of New Jersey: The statute exhibits an intention that the subject shall be continuously dealt with according to the varying condition and circumstances of the party." The provision of the Federal constitution, which requires that full faith and credit shall be given to the judicial proceedings of another State, in my opinion, should be deemed to relate to judgments or decrees which not only are conclusive in the jurisdiction where rendered, but which are final in their nature. If they, once and for all, establish a debt or other obligation against a party, the record is available in other jurisdictions as a foundation for a judgment there.


The provisions of our Code for the enforcement of a direction, in a judgment of divorce, for the payment of alimony, by equitable remedies, pertain only to such judgments as are recovered here (art. 4, chap. 15). The jurisdiction of the Supreme Court of this State to dissolve a marriage is conferred solely by statute, and its provisions upon the subject of alimony are not available to the plaintiff in aid of her decree.

The plaintiff's decree was, therefore, available to her as evidence in this action that the subjectmatter of the proceedings leading to its rendition, viz.: the liability for alimony, had become a debt of record in the State of New Jersey, which could not be avoided but by plea of nul tiel record (McElmoyle v. Cohen, 13 Peters [U. S.] 311, 324).

The case of Barber v. Barber (21 How. [U. S.] 582), cited by the plaintiff in support of her claim that the decree of the New Jersey court should be enforced in all its parts, was not parallel in its facts, and the observations of Justice Wayne, which are referred to, if intended as supposed, were not nec

With respect to how far the Supreme Court of this State will enforce the final decree of the New Jersey court, I think the determination of the Appellate Division to be quite correct. The action was to recover upon a final decree of the court of another State, which being rendered with jurisdic-essary to the decision of the particular question. tion over the person of the defendant, is to be In that case the wife had obtained a judgment of deemed conclusive, in so far as it adjudged the divorce from her husband in the Court of Chancery defendant to be indebted to the plaintiff at the date of this State, and the final decree awarded her a of its rendition. The proceedings in chancery had sum of money representing alimony retrospecterminated in an unconditional decree that the de- tively due to her, for the interval between the filfendant must pay a definite sum of money, estab- ing of the bill and the rendition of the decree; lished as a debt against him, and, therefore, it had directed execution therefor and, further, ordered extraterritorial value and force (Wharton Confl. the payment of permanent alimony in the future, Laws, sec. 804). As a debt of record against the during her life, in quarterly payments, which was defendant the courts of this State should give it "vested in her for her own and separate use and full credit and effect, but, as to its other provisions as her own and separate estate, with full power to for future alimony and for equitable remedies to invest the same * * to dispose of the same enforce compliance, I do not think we should say by will, or otherwise, from time to time during that it falls within the rule of the Federal consti- her life or at her death," etc. The husband then tution. I do not think that the courts of this State left this State and went to Wisconsin. A bill was should give effect to the decree by enforcing any filed there, in the United States court, by the wife, of the collateral remedies, which the prevailing through her next friend, setting forth the proceedparty may be entitled to have in New Jersey and ings had in the New York court and the decree, which the subsequent order gave to her. charging the husband with not having paid any part of the alimony adjudged to his wife and alleging that there was then due to her a certain amount of money on that account. In his answer he admitted the rendering of a decree of divorce after contestation and that by it he was subjected to

So far as it made provision for the payment of alimony in the future, it remained subject to the discretion of the chancellor and lacked conclusiveness of character. The chancellor's action was not final on the subject. As he observed in Lynde v.

I am satisfied, without further discussion, that the Court of Chancery in New Jersey had ample jurisdiction to render the final decree now in question, against the defendant.

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the payment of alimony to the extent and in the way it is claimed in the bill," and alleged that, as he had obtained a divorce from his wife in Wisconsin, she thereby "became a feme sole, and, being so, could not sue by her next friend," etc. The action resulted in a decree adjudging that a stated amount of money "is due from the defendant upon the alimony sued for," and, upon his default in payment, ordering execution therefor. It will be observed that the situation of the parties was quite other than here; that the decree of the New York court was the basis of a bill in equity in the Federal court, and that its finality as an adjudication with respect to alimony, past due and in the future (in which latter respect it was made a vested estate in her for life) was admitted by the answer to the bill. It will also be observed that the decree obtained in the United States court in Wisconsin merely adjudged a certain amount to be due complainant which the defendant must pay. The question in the case was stated to be, whether the wife might sue in another State "by her next friend, in equity, in a court of the United States, to carry into judgment the decree," and much of the discussion proceeded upon the jurisdiction in equity. As to the nature of a decree which awards alimony, it was remarked, in the course of the opinion, that when the court having jurisdiction of the wife's suit for divorce allows her alimony, "it becomes a judicial debt of record against the husband." As Mr. Justice Bartlett very correctly suggests in his examination of Barber v. Barber, Mr. Justice Wayne, when he further observed in his opinion that the wife might sue her husband in another jurisdiction “to carry the decree into a judgment there with the same effect that it had in the State in which the decree was given," could not have intended that she could carry with her judgment into another State the right to any particular remedies for its enforcement, because that would have been in conflict with the rule which he had laid down many years earlier in McElmoyle v. Cohen (supra).

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and which is set out in the complaint (but referred to as of March 24, 1898), is not enforceable here; for it was merely an order which sought to carry the final decree into execution within the State by the equitable remedies of a receivership and of an injunction. No action will lie upon such an order. I advise an affirmance of the judgment, without costs.

Parker, Ch. J., Haight and Werner, JJ., concur;
Landon, J., concurs in memorandum; O'Brien, J.,
not voting; Cullen, J., not sitting.
Judgment affirmed.



UDGE SUTHERLAND (Monroe county, N. Y.), on the 19th inst., handed down a decision in the case of Fred Mason and Another v. Jonathan B. West, concerning the legal status of automobiles or other horseless carriages in the public streets. In the opinion, published in full below, for which we are indebted to the Rochester Democrat and Chronicle, Judge Sutherland rules that the vehicles in question have a right on the streets, and that the owner or operator is not responsible for damages which may result from fright caused to horses, unless there is contributory negligence.

The decision was on an appeal taken by Mr. West from a judgment of the Municipal Court for $42.95 damages and $10.95 costs. Mr. West is the

inventor and owner of a steam vehicle of the

horseless variety, and while operating it on Tracy park, Rochester, October 18, 1898, a horse belonging to Mason became frightened at the vehicle and ran away, resulting in injury to the horse and damaging the wagon. Reed & Shutt were attorneys for the plaintiffs, and Hon. John B. M. Stevens, the present special county judge, appeared for Mr. West. The decision of Judge Sutherland follows:


Plaintiff's horse and delivery wagon were standing on Tracy park, Rochester, October 18, 1899, the horse being hitched by a strap attached to a thirty-pound weight. The roadway on Tracy park is fifteen feet from curb to curb. Defendant entered Tracy park at Alexander street with his motor carriage, and as he approached plaintiff's horse, who was headed towards Alexander street, became frightened at defendant's outfit and ran away, damaging the wagon and harness to the amount of $17.45. The horse received no injury except such as come from fright. The Municipal Court, in addition to the $17.45, allowed $25 damages for deterioration in value of the horse, supposed to follow from the increased propensity of fright induced by its experience on this occasion.

So far, therefore, as the final decree of the court in New Jersey adjudged moneys to be due and payable to the plaintiff from the defendant, it became a judicial debt of record, which the former was entitled to have enforced by the courts of this State, under the provisions of the Federal constitution, and a judgment recovered thereupon could be executed only as our laws permit (Barber v. Barber, supra, at p. 324), which would not include the equitable remedies provided by the statute in the chapter on matrimonial actions. So far as the plaintiff's decree provided for methods to enforce payment, its provisions were in the nature of execution and operative upon the defendant only as he, or property belonging to him, "In Hitchell v. Rochester Railway Company might be found within the jurisdiction of the (151 N. Y. 107) it was held that mere fright caused courts of New Jersey. by negligence does not give to the person frightThe subsequent order, dated February 8, 1898, ened any cause of action, no matter how serious

the fright may be in its atter effects. It is argued with much force that for the same reasons of public policy which were controlling in the Hitchell case, the item of $25 damage to this horse for tright should have been disallowed. Further-incident to the driving of horses, and the fact can

not unnecessarily to interfere with the use of the highway. Horses may take fright at conveyances that have become obsolete as well as at those which are novel; but this is one of the dangers

more, this horse, it seems, had run away twice before, and it would require a very nice insight to determine without speculation or mere guesswork what erect this scare had upon its permanent psychic equipment.

not be interposed as a barrier to retrogression or progress in the method of locomotion. Bicycles used to frighten horses, but no right of action accrued (Holland v. Bartch, 120 Ind. 46; Thompson v. Dodge, 58 Minn. 555). Electric street cars have caused many runaways. Automobiles operated without steam by storage batteries or by gasoline explosion engines, running at a moderate speed, may cause fright to horses unused to them; yet the horse must get used to them or the driver take his chances.


But passing that, a more important question is presented, whether any recovery should be had. Inis motor carriage was made by defendant, and as described by the witnesses and shown in the photograph exhibits, while somewhat crude, it does not differ very materially in general appearance from the steam automobiles which are coming into common use. It runs on four wheels with pneumatic tires; has a canopy top and is about the size of a one-horse delivery wagon. motive power is steam generated by a gasoline burner. A smoke stack connecting with the combustion chamber extends to the top of the canopy in the rear. There are sinuations in the stack "It will not do to say that it is proper to run through which the escaping vapor and the exhaust any kind of a contrivance upon the street in which steam passes, and the design is that the exhaust persons may be carried. A machine that would steam shall be condensed inside the stack. This go,puffing and snorting through the streets, trailstack would seem to be the main point of dissim-ing clouds of steam and smoke, might be a nuisilarity in appearance between defendant's machine and other motor carriages operated by steam.

ance, but this is not such a case. It cannot be said that the defendant's machine is such a departure in its construction or mode of operation from other steam motor carriages which experience has lately shown to be entirely practicable for street use, as to make it a nuisance, although because of the present novelty of horseless carriages horses may take iright at its approach. There was no proof of an unusual amount of vapor escaping at the time of the accident, nor of any amount of noise greater nan is ordinarily heard in running a machine of that character, and to sustain this judgment is to condemn the defendant's motor carriage and all others operating in a similar way, and to declare them impracticable and unfit for use upon the


The horse has no paramount or exclusive right to the road, and the mere fact that a horse takes fright at some vehicle run by new and improved methods, and smashes things, does not give the injured party a cause of action. As Judge Cooley says in Macomber v. Nichols (12 Mich. 212): When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods, and it cannot be assumed that these will be the same from age to age, or that the new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience or even to the injury of those who continue to use the road after the same manner as formerly.' If the defendant's motor carriage is practicable for the purpose of travel, and the noise and vapor caused by its use are kept within reasonable limitations, and are no greater than are fairly incident to the use of motor carriages which are found adapted to the needs of the general public, then I cannot see how the defendant can be held liable in the absence of evidence that at the particular time complained of the carriage was operated carelessly.

"If one should find it desirable to go back to primitive methods and trek along a city street with a four-ox team and wagon of the prairie schooner variety, it would possibly cause some uneasiness in horses unused to such sights. Yet, it could not be actionable, in my opinion, if a runaway should result, provided due care were shown

"The evidence in this case shows that defendant was running his motor at a moderate rate of speed, and as it approached the horse he slowed up. Defendant and his wife, who was with him, say they came to a full stop before the horse started to run, but this is contradicted by plaintiff's witnesses, who admit he slackened speed.

"There is a statute against the use of any vehicle propelled by steam, in public streets (except on railroad tracks) unless a person is sent at least one-eighth of a mile in advance to warn travelers of its approach (Highway Law, sec. 155; Penal Code, sec. 640, sub. II). This statute, though broad enough to cover the motor in question, was passed before automobiles were in use, and it was directed against traction engines, which are ponderous and noisy affairs and have been the cause of much litigation (Mullen v. Glens Falls, 11 App. Div. 275). The provision of law that the forerunner must precede the steam carriage by at least an eighth of a mile, shows that it was not drawn with steam automobiles in mind of the kind used in this case; and if a man had been sent that distance ahead, it would have been of no value to

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