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against him the decree of the Chancery Court of him in the divorce proceedings. One or the other New Jersey and further ensorcing against him the of these conditions was required to be shown to order of that court which provided for the enforce- enable the court to proceed with jurisdiction in ment of the decree by the appointment of a re- personam. As the service of process was construcceiver and by an injunction. She was held entitled tive by publication, however authorized by the to judgment against the defendant for the amount laws of the State, it was ineffectual against the of alimony, counsel fee and costs due, or incurred, defendant for any purpose (People v. Baker, 76 under the New Jersey decree; for the amount of N. Y. 78; Matter of Kimball, 155 id. 62; Pennoyer alimony accrued since the decree; that he pay to v. Neff, 95 U. S. 714; Story's Conflict of Laws, sec. her the sum of $80 a week from the date of the 539). 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 was purposely drawn without providing for, or replaintiff and defendant from the judgment of the serving any alimony,” etc.; that he was finanAppellate Division; the plaintiff because of its cially unable to pay alimony,” and “that the said modification, and the defendant because of its decree of divorce having been made without reaffirmance of the judgment of the trial court. serving the question of alimony, and this defend

ant having been absolutely divorced from said James Westervelt, Henry B. Gayley and Matthew C. Fleming, for plaintiff; John H. Kemble, petitioner by said decree, and having since formed for defendant.

new relations and matrimonial obligations, that it

would be illegal, inequitable and unjust to now GRAY, J. – I think that the Appellate Division impose upon him the burden of alimony,” etc. In has very correctly decided the questions in the short, he appeared and submitted himself to the case, and the opinion of Mr. Justice Bartlett, jurisdiction of the court, appealing to its considspeaking for that court, leaves little, if anything, eration of the facts, and not objecting to its power to be added to its reasoning. With respect to the to proceed; not repudiating the divorce, but relymain question, whether the Court of Chancery of ing upon it. There cannot be the slightest questhe State of New Jersey acquired jurisdiction over tion that his appearance was general. He was the defendant to render the final decree for the represented by counsel, until the order of the payment of alimony, it is argued, in his behalf, chancellor, which amended the decree of divorce that the decree of divorce was invalid as to him, by reserving to the petitioner the right to apply at and, therefore, afforded no support for the decree the foot thereof for alimony, and to the court the of alimony. That the decree of divorce was of no power to make any further order with respect force as to him cannot be disputed. It is quite thereto, had been affirmed by the Court of Errors settled, at the present day, that no State can exer- and Appeals, upon his own appeal, and until the cise jurisdiction and authority over persons or application for a reference to determine the property without its territory. Its laws and the amount of alimony. Is he, then, in a position to judgments of its tribunals can have no extraterri- invoke the invalidity of the original decree of torial operation, except so far as the former may divorce? As he was not personally served; and be allowed such by comity. The decree of divorce did not appear in the divorce action, the decree which the plaintiff obtained in New Jersey was divorcing the plaintiff could not have given her effectual to determine her status as a citizen of any judgment in personam. It did not reserve the that State towards the defendant, but as to him it right to apply thereafter for alimony, when juriseffected nothing, and was void for want of per- diction in personam was obtained of the defendant; sonal service of process or of an appearance by but that was an unintentional omission, as the

chancellor decided which was due to the inad

appear, and a final decree was rendered by the vertence of plaintiff's counsel, and would be reme

chancellor granting the divorce and awarding alidied by amending the decree. The affirmance of

mony, etc. An action was then brought in this the order, in that respect, on defendant's appeal, State by the wife upon the decree, to recover settled the law of that State to be, that the court against her husband the amount awarded for alimay, upon petition, amend its enrolled decree,

mony and costs, and the question was whether the when the amendment is necessary to give full ex- New Jersey court had jurisdiction to render the pression to its judgment and is matter which decree. In the Supreme Court of the United would, without doubt, have been incorporated in States, to which the case was taken from this court the decree when made, if attention had been called (127 N. Y. 408), by writ of error, it was held that, to it (Lynde v. Lynde, 54 N. J. Eq. 473). The in affirming the dismissal of the plaintiff's comdemand for alimony in a divorce suit is not an plaint upon the trial, due effect had not been given essential part of the cause of action, but is merely to the provisions of Article 4 of the Constitution incidental to the action and the judgment (Forest of the United States, which require that full faith v. Forest, 25 N. Y. 501; Galusha v. Galusha, 138 id. and credit shall be given in each State to the 272, 281; Lynde v. Lynde, supra). In Kamp v. judicial proceedings of every other State. It was Kamp (59 N. Y. 212) the question was not up as conceded that if the judgment of the Court of to whether the court might amend its judgment Chancery was not binding upon the defendant granting divorce, simpliciter, where the omission therein, personally, in that State, no such force to reserve the question of alimony was shown to

could be given to it in the State of New York; but have been through inadvertence. The application it was held that the law of the State of New Jersey there was for an order directing the payment of must be deemed to be as declared by the alimony, upon a judgment of divorce which was

chancellor, who had rendered a final decree, silent as to alimony, and it was held that the power based upon the original bill, the process under to allow it in subsequent proceedings does not which had been served upon the defendant exist, in view of the legal presumption that the within the State, and upon the supplemental judgment had finally decided every question in- bill

, a copy of which, with the rule to plead, volved in the action, which would include the right had been served upon the defendant without of the plaintiff to claim alimony.

the State. It was said that “ so long as this decree In my opinion, assuming, as we must, that the stands, it must be deemed to express the law of the decree of the Chancery Court, which amended the State. If the defendant deemed himself aggrieved original decree of divorce, expressed the law of thereby, his remedy was by appeal.” In other the State of New Jersey (Laing v. Rigney, 160 words, the Supreme Court of the United States U. S. at page 542), jurisdiction was obtained over held that the New Jersey court having once acthe defendant, by his appearance, plea and sub- | quired jurisdiction of the defendant in the action, mission, to so far cure the invalidity of the divorce, whether it retained that jurisdiction, so decree as to render it effective as a basis for ali- render the final decree in the proceedings leading mony proceedings. But whether its invalidity was thereto, was a question depending upon the law of cured, or not, in the subsequent proceeding to that State, which could not be attacked collaterally. which the defendant was a party, a final decree Laing v. Rigney is much in point; inasmuch as was entered adjudging that he pay to the plaintiff jurisdiction of the defendant, in this case, having a certain sum of money. The jurisdiction once been obtained in the proceeding, it was retained by obtained could not be divested by his refusal to the court until it made the final decree. The jurappear in the later stages of the proceeding. He isdiction conferred the power to render the decree, cannot now attack the final decree of the court and it will be regarded as valid and binding until collaterally after having had his day in court. In set aside in the court in which it was rendered Laing v. Rigney (supra), after the wife had filed a (Kinnier v. Kinnier, 45 N. Y. p. 542). bill against her husband in the Court of Chancery, Ward v. Boyce (152 N. Y. 191), has no applicain the State of New Jersey, alleging acts of adul- tion. The action was upon a promissory note, tery and the defendant had appeared and answered made by the defendant to the plaintiff's order, and denying the allegations, the plaintiff filed a supple- the issue between the parties was as to the plainmental bill, wherein she alleged that the defendant tiff's ownership. The defendant claimed that the had committed adultery with a person named, record of a certain proceeding in a justice's court since the commencement of the suit, and prayed in the State of Vermont, was conclusive evidence that she might have the same relief against the that the note was not her property, but was that of defendant as she might is the facts had been stated her husband. The proceeding in the Vermont in the original bill. Process upon the supple- court was by way of trustee process and was instimental bill could not be served personally upon tuted by a creditor of Mr. Ward, this plaintiff's the defendant, who was a non-resident, and there husband, against him and Boyce, the maker of the was substituted service by publication. He filed note, as his debtor. Ward was a non-resident, did no answer to the supplemental bill, nor did he not appear and judgment went against him by default. Boyce, the other defendant, appeared and Lynde (supra), referring to the law of New Jersey: stated that he gave the note to Mrs. Ward for “ The statute exhibits an intention that the subject cattle purchased, and he asked that she be cited to shall be continuously dealt with according to the appear. A citation was served upon her, in the varying condition and circumstances of the party." State of Vermont, to show cause why the note The provision of the Federal constitution, which should not be adjudged to be held as her hus- requires that full faith and credit shall be given to band's property by his creditor. She did not ap- the judicial proceedings of another State, in my pear and judgment was rendered in conformity opinion, should be deemed to relate to judgments with the terms of the citation. We held that the or decrees which not only are conclusive in the judgment did not conclude Mrs. Ward, because jurisdiction where rendered, but which are final in she was not a party to the proceeding and was their nature. If they, once and for all, establish a cited to appear at a stage of it, when she had no debt or other obligation against a party, the record opportunity to litigate the fundamental issue. The is available in other jurisdictions as a foundation principal fact had then been adjudged, that the in- for a judgment there. debtedness for the cattle, for which the note was The provisions of our Code for the enforcement given, was owing to the husband; and this in a of a direction, in a judgment of divorce, for the special statutory proceeding, in which the court payment of alimony, by equitable remedies, perhad acquired no jurisdiction by service of any pro- tain only to such judgments as are recovered here cess upon him, or upon his wife, who held the (art. 4, chap. 15). The jurisdiction of the Supreme note. When she was cited, it was not that she Court of this State to dissolve a marriage is conmight contest the validity of the judgment against ferred solely by statute, and its provisions upon her husband, but merely to show cause why the the subject of alimony are not available to the note she held should not be adjudged as her hus- plaintiff in aid of her decree. band's property and to be held by his creditor. I The plaintiff's decree was, therefore, available can perceive no resemblance in the principle of to her as evidence in this action that the subjectthe decision in Ward v. Boyce to that involved matter of the proceedings leading to its rendition, here.

as to

viz.: the liability for alimony, had become a debt I am satisfied, without further discussion, that of record in the State of New Jersey, which could the Court of Chancery in New Jersey had ample not be avoided but by plea of nul tiel record (Mcjurisdiction to render the final decree now in ques- Elmoyle v. Cohen, 13 Peters (U. S.] 311, 324). tion, against the defendant.

The case of Barber v. Barber (21 How. (U. S.] With respect to how far the Supreme Court of 582), cited by the plaintiff in support of her claim this State will enforce the final decree of the New that the decree of the New Jersey court should be Jersey court, I think the determination of the Ap- enforced in all its parts, was not parallel in its facts, pellate Division to be quite correct. The action and the observations of Justice Wayne, which are was to recover upon a final decree of the court of referred to, if intended as supposed, were not necanother State, which being rendered with jurisdicessary to the decision of the particular question. tion over the person of the defendant, is to be in that case the wise 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 Conf. 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 So far as it made provision for the payment of part of the alimony adjudged to his wife and allegalimony in the future, it remained subject to the ing that there was then due to her a certain amount discretion of the chancellor and lacked conclusive of money on that account. In his answer he adness of character. The chancellor's action was not mitted the rendering of a decree of divorce after final on the subject. As he observed in Lynde v. contestation and that by it he “was subjected to




the payment of alimony to the extent and in the and which is set out in the complaint (but referred way it is claimed in the bill,” and alleged that, as to as of March 24, 1898), is not enforceable here; he had obtained a divorce from his wife in Wis- for it was merely an order which sought to carry consin, she thereby “became a feme sole, and, the final decree into execution within the State by being so, could not sue by her next friend,” etc. the equitable remedies of a receivership and of an The action resulted in a decree adjudging that a injunction. No action will lie upon such an order. stated amount of money is due from the defend- I advise an affirmance of the judgment, without ant upon the alimony sued for,” and, upon his de- costs. fault in payment, ordering execution therefor. It Parker, Ch. J., Haight and Werner, JJ., concur; will be observed that the situation of the parties Landon, J., concurs in memorandum; O'Brien, J., was quite other than here; that the decree of the not voting; Cullen, J., not sitting. New York court was the basis of a bill in equity Judgment affirmed. 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 LEGAL STATUS OF AUTOMOBILES. a vested estate in her for life) - was admitted by the answer to the bill. It will also be observed

UDGE SUTHERLAND (Monroe county, N. that the decree obtained in the United States court

Y.), on the 19th inst., handed down a dein Wisconsin merely adjudged a certain amount to

cision in the case of Fred Mason and Another v. be due complainant which the defendant must pay. Jonathan B. West, concerning the legal status of The question in the case was stated to be, whether automobiles or other horseless carriages in the the wife might sue in another State" by her next

public streets. In the opinion, published in full friend, in equity, in a court of the United States, below, for which we are indebted to the Rochester to carry into judgment the decree,” and much of Democrat and Chronicle, Judge Sutherland rules the discussion proceeded upon the jurisdiction in that the vehicles in question have a right on the equity. As to the nature of a decree which awards

streets, and that the owner or operator is not alimony, it was remarked, in the course of the responsible for damages which may result from opinion, that when the court having jurisdiction of fright caused to horses, unless there is contributhe wife's suit for divorce allows her alimony, “it

tory negligence. becomes a judicial debt of record against the hus

The decision was on an appeal taken by Mr. band.” As Mr. Justice Bartlett very correctly West from a judgment of the Municipal Court for suggests in his examination of Barber v. Barber, $42.95 damages and $10.95 costs. Mr. West is the Mr. Justice Wayne, when he further observed in inventor and owner of a steam vehicle of the his opinion that the wife might sue her husband horseless variety, and while operating it on Tracy in another jurisdiction “ to carry the decree into a

park, Rochester, October 18, 1898, a horse belongjudgment there with the same effect that it had in ing to Mason became frightened at the vehicle and the State in which the decree was given," could

ran away, resulting in injury to the horse and damnot have intended that she could carry with her aging the wagon. Reed & Shutt were attorneys judgment into another State the right to any par- j for the plaintiffs, and Hon. John B. M. Stevens, ticular remedies for its enforcement, because that the present special county judge, appeared for Mr. would have been in conflict with the rule which he West. The decision of Judge Sutherland follows: had laid down many years earlier in McElmoyle “ Plaintiff's horse and delivery wagon were standv. Cohen (supra).

ing on Tracy park, Rochester, October 18, 1899, So far, therefore, as the final decree of the court the horse being hitched by a strap attached to a in New Jersey adjudged moneys to be due and thirty-pound weight. The roadway on Tracy payable to the plaintiff from the defendant, it be- park is fifteen feet from curb to curb. Defendant came a judicial debt of record, which the former entered Tracy park at Alexander street with his was entitled to have enforced by the courts of motor carriage, and as he approached plaintiff's this State, under the provisions of the Federal horse, who was headed towards Alexander street, constitution, and a judgment recovered thereupon became frightened at defendant's outfit and ran could be executed only as our laws permit (Bar- | away, damaging the wagon and harness to the ber v. Barber, supra, at p. 324), which would not

amount of $17.45. The horse received no injury include the equitable remedies provided by the except such as come from fright. The Municipal statute in the chapter on matrimonial actions. So Court, in addition to the $17.45, allowed $25 damfar as the plaintiff's decree provided for methods ages for deterioration in value of the horse, supto enforce payment, its provisions were in the posed to follow from the increased propensity of nature of execution and operative upon the de- fright induced by its experience on this occasion. fendant 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 after ettects. It is argued not unnecessarily to interiere with the use of the with much force that for the same reason, highway. Horses may take fright at conveyances public policy which were controlling ine that have become obsolete as well as at those Hitcheli case, the item of $25 damage to this horse which are novel; but this is one of the dangers ior fright should have been disallowed. further- ) incident to the driving of horses, and the fact canmore, this horse, it seems, had run away twice not be interposed as a barrier to retrogression or before, and it would require a very nice insiglit to progress in the method of locomotion. Bicycles determine without speculation or mere guesswork used to frighten horses, but no right oi action acwhat effect this scare had upon its permanent crued (Holland v. Bartch, 120 Ind. 46; Thompson psychic equipment.

v. Dodge, 58 Minn. 555). Electric street cars have But passing that, a more important question is

caused many runaways.

Automobiles operated presented, whether any recovery should be had.

without steam by storage batteries or by gasoline inis motor carriage was made by defendant, and explosion engines, running at a moderate speed, as described by the witnesses and shown in the may cause fright to horses unused to them; yet the photograph exhibits, while somewhat crude, it horse must get used to them or the driver take does not difter very materially in general appear his chances. ance from the steam automobiles which are com- The evidence in this case shows that deiendant ing into common use. It runs on four wheels with was running his motor at a moderate rate oi speed, pneumatic tires; has a canopy top and is about and as it approached the horse he slowed up. the size of a one-horse delivery wagon. The Defendant and his wife, who was with him, say motive power is steam generated by a gasoline they came to a full stop besore the horse started burner. A smoke stack connecting with the com- to run, but this is contradicted by plaintiff's witbustion chamber extends to the top of the canopy nesses, who admit he slackened speed. 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 ugh 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

ance, but this is not such a case. It cannot be said and other motor carriages operated by steam. that the defendant's machine is such a departure in

** The horse has no paramount or exclusive right its construction or mode of operation from other to the road, and the mere fact that a horse takes steam motor carriages which experience has lately fright at some vehicle run by new and improved shown to be entirely practicable for street use, as methods, and smashes things, does not give the to make it a nuisance, although because of the injured party a cause of action. As Judge Cooley present novelty of horseless carriages horses may says in Macomber v. Nichols (12 Mich. 212): take iright at its approach. There was no prooi of · When the highway is not restricted in its dedica- an unusual amount of vapor escaping at the time tion to some particular mode of use, it is open to of the accident, nor of any amount of noise greater all suitable methods, and it cannot be assumed man is ordinarily heard in running a machine oi that these will be the same from age to age, or that character, and to sustain this judgment is to that the new means of making the way useful must condemn the defendant's motor carriage and all be excluded merely because their introduction may others operating in a similar way, and to declare tend to the inconvenience or even to the injury of them impracticable and unfit for use upon the those who continue to use the road after the same streets. manner as formerly. If the defendant's motor

There is a statute against the use of any vehicle carriage is practicable for the purpose of travel, propelled by steam, in public streets (except on and the noise and vapor caused by its use are kept railroad tracks) unless a person is sent at least within reasonable limitations, and are no greater one-eighth of a mile in advance to warn travelers than are fairly incident to the use of motor car

of its approach (Highway Law, sec. 155; Penal riages which are found adapted to the needs of the

Code, sec. 640, sub. II). This statute, though general public, then I cannot see how the defend

broad enough to cover the motor in question, was ant can be held liable in the absence of evidence passed before automobiles were in use, and it was that at the particular time complained of the car- directed against traction engines, which are ponriage was operated carelessly.

derous and noisy affairs and have been the cause “ If one should find it desirable to go back to of much litigation (Mullen v. Glens Falls, 11 App. primitive methods and trek along a city street, Div. 275). The provision of law that the forewith a four-ox team and wagon of the prairie runner must precede the steain carriage by at least schooner variety, it would possibly cause some an eighth of a mile, shows that it was not drawn uneasiness in horses unused to such sights. Yet, with steam automobiles in mind of the kind used it could not be actionable, in my opinion, if a run- in this case; and if a man had been sent that disaway should result, provided due care were shown tance ahead, it would have been of no value to

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