Bell v. Bell

40 N.Y.S. 443 | N.Y. App. Div. | 1896

Follett, J.:

The plaintiff not having been personally served with process and never having- appeared in the action- prosecuted in the Court' of Common Pleas of the State of Pennsylvania, had the right to attack the judgment rendered by that court, on the ground that it never acquired jurisdiction -over her, and also, on the ground that the plaintiff in that action was not a citizen of Pennsylvania,. and it. was competent to support her contention by oral and documentary evi* dence. The recitals .in the Pennsylvania judgments were not con* elusive nor binding on her-. (Thompson v. Whitman, 18 Wall. 457; Kerr v. Kerr, 41 N. Y. 272; Cross v. Cross, 108 id. 628; Rigney v. Rigney, 127 id. 408; Vanfleet Col. Attack, §§ 388, 389, and cases cited.) It is not asserted that the plaintiff in this action ever resided in Pennsylvania, or that she was personally served with. process in that State, or that she appeared in that action, and the evidence is ample to sustain the finding of the referee that the defendant in this action was not a resident or citizen of Pennsylvania, but went there solely for the purpose.of instituting and prosecuting his suit for a divorce.

These facts being well found, it is settled by along line of authorities in the courts of this State that the judgment of the Court of Common Pleas of Pennsylvania is not binding on the plaintiff, and is not a bar to her action for a divorce, (Kerr v. Kerr, 41 N. Y. 272; Kinnier v. Kinnier, 45 id. 535; Hoffman v. Hoffman, 46 id. 30; People v. Baker, 76 id. 78; O’Dea v. O’Dea, 101 id. 23; Jones v. Jones, 108 id. 415; Cross v. Cross, Id. 628; Rigney v. Rigney, 127 id. 408; S. C., sub. nom. Laing v. Rigney, 160 U. S. 531; Williams v. Williams, 130 N. Y. 193; Atherton v. Atherton, 82 Hun, 179.)

It was shown that the defendant has an estate of the value of more than $300,000, and is in the receipt of a large annual income. During the married life of these parties the defendant owned and they occupied an expensive home, handsomely furnished; kept horses, carriages, a butler, a coachman and a number of servants, and the sum allowed to the plaintiff for alimony, with the income of her estate, will not enable her to live in the same style and position that she did during her married life. The defendant gave no satisfactory evidence of the amount of his estate, and we think the estimate of the referee of its value and of defendant’s income a conservative one, and that the sum allowed for alimony is not excessive.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.