103 N.E. 1113 | NY | 1913
In December, 1901, the defendant and his wife departed from the empire of Germany, of which country, or of the kingdom of Bavaria, which is a constituent part of such empire, he was a subject and resident. He came to the city of New York, where he has resided and engaged in business ever since. In June, 1906, the defendant filed notice of his intention of becoming a citizen of the United States. Subsequent to that time and on July 11th, 1907, the plaintiff, also a resident of and a subject of Bavaria, recovered in the courts of that kingdom a judgment against the defendant on an obligation alleged to have been incurred before the latter's departure from that country. The process on which the *151 judgment was founded was not served upon the defendant personally, but by publication, and at that time he was not within the empire.
The trial court held that the judgment was without efficacy in this country and rendered judgment for the defendant, which has been affirmed by the Appellate Division. We think the judgments below were right, and the opinion of the learned trial judge leaves very little to be added by us. The whole argument of the appellant is based on the proposition that at the time of the recovery of the judgment the defendant was still a subject or citizen of Germany or Bavaria, and, therefore, bound by its laws. In one sense this is doubtless true, and it may be assumed that the judgment is conclusive against the defendant in the country where it was recovered, and there would be enforced against him or his property. But the judgments of the courts of no country have, necessarily, any extraterritorial effect. When they are enforced in a foreign country, which as a rule they are to a certain extent, it is solely by virtue of comity. The elaborate review of this subject by the Supreme Court of the United States in Hilton v. Guyot (
The question then is how far comity should induce us to respect a foreign judgment obtained without personal service of process against a citizen of a foreign country domiciled here at the time of the recovery of the judgment. There is some confusion in thedicta of text writers on the subject (Story's Conflict of Laws, section 599 et seq.; Black on Judgments, section 836 etseq.), and there has been fluctuation in the decisions of the courts. The only case, however, I can find in which a judgment of a foreign country recovered against a citizen of that country upon whom, absent therefrom, constructive service only was had, was upheld, is that of Douglas v. Forrest (4 Bing. 686). In that case the judgment was recovered in Scotland and enforced in *152
England. The grounds on which the decision was made are not very clearly stated in the opinion. On the other hand, in Smith v.Grady (
The learned counsel for the appellant places great reliance on the decision of this court in Hunt v. Hunt (
The judgment appealed from should be affirmed, with costs.
WERNER, HISCOCK, CHASE, COLLIN, CUDDEBACK and HOGAN, JJ., concur.
Judgment affirmed. *154