90 N.Y.S. 438 | N.Y. App. Div. | 1904
The plaintiff and the defendant Dodge intermarried on March 28, 1877. Twenty years later Mrs. Dodge brought an action for an absolute divorce in this court based upon acts of adultery alleged to have been committed by her husband in Atlanta, Ga. The summons in that action was claimed to have been served by the plaintiff’s attorney therein at the Everett House, in the city of New York, upon the defendant Dodge. Thereafter a notice of appearance and an answer were served on hehalf of defendant by Mr. Mortimer A. Ruger, an attorney then engaged in practice in the city of New York, who has since died. After the joinder of issue an order of reference was issued upon consent to a referee to hear and determine "the issues and report to the court. The reference was executed, a report was made in favor of the plaintiff, the court confirmed the report and a decree of divorce was granted on March 28, 1898 Thereafter and on J une 18,1901, Mrs. Dodge, believing that the decree of divorce was in all respects valid, married Charles W.
It is clear that the position occupied by Charles W. Morse upon discovering the letters written by Dodge required that he immediately intervene for the purpose of establishing the innocence of his wife in contracting the marriage, and vindicating her character as well as his own. These steps were taken promptly upon discovery of the facts and the purpose which he thus sought to accomplish ought not to be defeated by any consideration short of an overwhelming necessity.
There is some doubt as to whether Dodge was or was not personally served with the summons, but this is not controlling. By the appearance of an attorney at his direction, given over his signature, the court acquired jurisdiction to render the decree. The proof was abundant to show the commission of some of the offenses charged against him in the complaint and clearly entitled the plaintiff therein to the decree awarded in her favor.
The order which has been granted was clearly right and it should, therefore, be affirmed, with ten dollars costs and disbursements.
Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., concurred in result only.
Order affirmed, with ten dollars costs and disbursements.