Benedict v. Clarke

123 N.Y.S. 964 | N.Y. App. Div. | 1910

Jenks, J.:

The plea of the plaintiff is that perforce of the judgment in Louisiana she is entitled to one-half of the moneys, and as usufructuary to the. possession of the other half of the moneys sued for in this action. As to one-half of the moneys her plea is that of the legal owner thereof, and she stands upon the same'footing as any other legal owner. (Toronto G. T. Co. v. Chicago, B. & Q. R. R. Co., 123 N. Y. 37, 46.)

A usufructuary is one who has the- usufruct. And a usufruct is the right of enjoying a thing the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing. The obligation of not altering the substance of the thing takes place only in the case of a perfect usufruct. (Civil Code of Louisiana, art. 533.) Money is an imperfect usufruct (Id. art. 534), and the ownership is in the usufructuary (Id. art. 536). The usufructuary is entitled under the Civil Code of Louisiana to the possession and the use of the usufruct, and to proceed by action against all persons to obtain possession and enjoyment thereof (Id. art. 556). It would seem, then, that her position is not like that of an executor or administrator, but like unto that of a legal owner, within the distinction pointed out in Toronto G. T. Co. v. Chicago, B. & Q. R. R. Co. (supra, 47).

There is no allegation that the Civil District Court for the parish of Mew.. Orleans, in the State of Louisiana, is a court of general jurisdiction and its jurisdiction in this case specifically alleged. And we cannot assume that such court is one of general jurisdiction. The name thereof does not import it, as does the name Court of Common Pleas of Mercer county (Pringle v. Woolworth, 90 N. Y. 502), for the reasons stated in the opinion therein, or the name Court of Common Pleas (Teel v. Yost, 128 N. Y. 387), for the reasons stated in Pringle's Case (supra). But, on the other hand, the allegation is that the judgment was “ duly rendered.” This, we think, is sufficient as against the general demurrer. (Horton v. Shipherd, 14 Wkly. Dig. 453; Dore v. Thornburgh, 90 Cal. 64. See, too, Schluter v. Bowery Savings Bank, 117 N. Y. 125, 131.) In Brownell v. Town of Greenwich (114 N. Y. 518) the court, per Vann, J., say : “ ‘ Duly,’ in legal parlance, means according to law. (Gibson v. People, 5 Hun, 542, 543; People ex rel. Hawes v. Walker, 23 Barb. 304; Fryatt v. Lindo, 3 Edw. Ch. 239 ; Burns v. People, 59 Barb. 531, 543;. Webb v. Bidwell, 15 Minn. 479, 484.) It does not relate to form merely, but includes form and substance both. The expression ' duly adjudged,’ as used in the statement for the submission of this controversy, therefore, means adjudged according to law, that is, according to the statute governing the subject, and implies the existence of every fact essential to perfect regularity of procedure, and to confer jurisdiction both of the subject-matter and of the parties affected by the judgment, including the defendant. A judicial officer has jurisdiction, when he has power to inquire into the facts, to apply the law and, to pronounce the judgment." Any step in the cause or proceeding before him is necessarily the exercise of jurisdiction, and that step cannot be ‘duly’taken unless jurisdiction exists. The final step, in particular, the making of the judgment, cannot be ‘ duly’ taken unless all of. the preliminary steps upon which it is based have likewise been duly taken.” ■ •

The interlocutory judgment is affirmed, v^ith costs.

Hirschberg, P. J., and Woodward, J., concurred; Burr and Carr, JJ., dissented.

Interlocutory judgment affirmed, with costs.