Kahn v. Lesser, 18 N.Y.S. 98

18 N.Y.S. 98 | New York Court of Common Pleas | 1892

Pryor, J.

The single question for determination is whether the evidence was sufficient to take the case to the jury on the issue as to the jurisdiction of the Wisconsin court over the person of the defendant. A judgment in AViseonsin, proceeding by attachment alone, would be wholly ineffectual to sustain the action. Cooper v. Reynolds, 10 Wall. 308, 818; Cochran v. Fitch, 1 Sandf. Ch. 142. Nor is the other position of the respondent one whit more tenable, namely, that the appellant was precluded to impeach the Wisconsin judgment because by the federal statute it has the same effect in ■this state as is imparted tó it by the law of the forum. The argument is vicious, as begging the question by assuming ihe validity of the judgment in Wisconsin; whereas, for defect of jurisdiction, the judgment would be a nullity in Wisconsin, and so of no efficacy there, or elsewhere. Christmas v. Russell, 5 Wall. 305; Starbuck v. Murray, 5 Wend. 148; Kerr v. Kerr, 41 N. Y. 272, 275; Hoffman v. Hoffman, 46 N. Y. 30; Ferguson v. Crawford, 70 N. Y. 253, 262, 263. Neither can the judgment under review be upheld by the doctrine of Denton v. Noyes, 6 Johns. 296; Hamilton v. Wright, 37 N. Y. 502; and Brown v. Nichols, 42 N. Y. 26,—namely, that a judgment obtained upon the unauthorized appearance of an attorney is conclusive on the party in a collateral proceeding; for the principle of those eases has been limited in operation by the court of appeals to domestic judgments. Vilas v. Railroad Co., 123 N. Y. 441, 456, 457, 25 N. E. Rep. 941. And so the question recurs: The defendant not having been served with process in the AViseonsin action, being non-resident in that state, was the evidence of an unauthorized •appearance for him by the attorneys whose appearance the record recites, and Who-did in fact appear, so conclusive as to justify the court in withdrawing the issue from the jury? Undoubtedly, the presumption of jurisdiction prevails in favor of superior courts; but the presumption may be repelled by extrinsic evidence, and even the recital of an appearance in the record is not conclusive on the party. Ferguson v. Crawford, 70 N. Y. 253, 257. Then the case stands thus: In support of jurisdiction in the AViseonsin court we have the legal presumption and the record recital, while in impeachment off the jurisdiction we have the uncontradicted testimony of the appellant that he never authorized an appearance on his behalf. The presumption and the recital constitute plenary proof of jurisdiction unless and until their force be overcome by contrary evidence. The fact that appellant’s co-defendants in Wisconsin did not authorize the appearance is no corroboration of the allegation that he did not authorize it; for, the partnership being dissolved, they had no power to retain an attorney for him. It results, therefore, that, since-the evidence of no appearance by appellant consists exclusively of his own testimony, an issue was raised for the jury; and, as we have no jurisdiction-to estimate the weight of proof in the court below, our only alternative is to-affirm the judgment. Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. London, 73 N. Y. 609; Wohlfahrt v. Beckert, 92 N. Y. 490. Notwithstanding the head-note in Kelly v. Burroughs, 102 N. Y. 93, (6 N. E. Rep. 109,) the doctrine of these cases is not impugned; for in Kelly v. Burroughs, 102 N. Y. 95, (6 N. E. Rep. 110,) it appeared that there “was no conflict of evidence, or anything or any circumstance from which an inference against the fact testified to by the party could be drawn.” Judgment affirmed, with costs. All concur.