In re the Estate of Neidnig

108 N.Y.S. 478 | N.Y. App. Div. | 1908

Jenks, J.:

This is an appeal from an order of the Surrogate’s Court of Kings county, denying the application of an administrator for a commission to take foreign testimony in proceedings brought to remove him on the ground that lie' is not the son of the intestate, but a bastard; The application sought the testimony of the reputed grandmother, of the reputed aunt of the administrator, and of the burgomaster of the town where the administrator was born, “ or any others to be named in the order.” Proof was submitted in opposition to the application, consisting of transcripts from the records of the Boyal Court at Hassfurt, in ■ the matter of the guardianship of Johann Bichard Sauerbrey of Kleinmunster. The learned surrogate denied the application upon the grounds that a decree of a foreign court having jurisdiction of the cause and the parties is entitled to full credence here, and that even if this decree could be assailed for fraud or jurisdictional defects, that step could only be taken by one aggrieved, whereas in this case the administrator had benefited by the fraud, if any. As to the other proposed witnesses the learned surrogate concluded that their testimony was not competent.

But there is a well-recognized exception to the rule that requires full faith and credit to be given to foreign judgments. When the “judgment,” adjudication or determination is in the nature of a police regulation of the country wherein it was made, it has no extraterritorial force as a judgment. (Black Judg. [2d ed.] § 841; Freem. Judg. [4th ed.] § 597; 23 Cyc. 1610; De Brimont v. Penniman, 10 Blatchf. 436.) The “ judgment ” relied upon in this proceeds ing is the result of a proceeding of filiation in the Boyal Court at Hassfurt. The records submitted show that the mother of this administrator while she was single brought proceedings under the guardianship of the mayor of Kleinmunster for the “ reimbursement for spoliation of the virgin honor,” for confinement and baptism expenses and for the support of this administrator until he was twenty-one, against J. M.-Jacob on the ground that he was the father of this child. Jacob when brought in denied the paternity and resisted the application. Legal proceedings were authorized against him by the mother and the mayor as guardian within four weeks after October 19,1881. The record of the proceedings shows nothing further save that on JSTovember 7, 1881, the mayor presented an agreement for approval between Jacob and the woman, whereby Jacob paid 800 marks to the guardian, the capital sum to' ■ be invested and the interest to be paid to the woman, who renounced-all further claims. This agreement was approved. In 1902 the illegitimate child arrived at maturity, applied for the sum thus invested and received it.

I think that the “ judgment ” in that proceeding was nothing more than the determination of a bastardy proceeding in the exercise of the police regulation of the country. Proceedings of the same general character in this State are regarded as quasi-criminal,' not civil. (People v. Colgrove, 18 N. Y. Supp. 370; People ex rel. Fuller v. Carney, 29 Hun, 47.)

The order should be reversed and the proceeding remitted to the Surrogate’s Court for a hearing upon the merits.

Woodward, Gaynob, Rich and Hiller, JJ., concurred,

. Order of the Surrogate’s Court of Kings county reversed and proceeding remitted to said court for a hearing upon the merits.