109 N.Y.S. 1143 | N.Y. App. Div. | 1908
Dissenting Opinion
I am constrained by the authority of precedents neither distinguishable upon principle nor upon the material facts, to concur in the affirmance of the judgment. Originally, the theory upon which the courts of this State refused to recognize a decree of divorce granted in another State or territory against a resident of this State who was not served personally within the jurisdiction of the court and did not appear in the action, was upon grounds of public policy, owing to the fact that in other States and in the territories divorces were authorized upon grounds not recognized by our public policy as sufficient to justify such a decree. (People v. Baker, 76 N. Y. 78; Matter of Morrisson, 52 Hun, 102; affd., 117 N. Y. 638, and cases cited.) The rule, however, has been extended, and it must now be regarded as the settled law of this State that, even though the foreign divorce was obtained upon the ground upon which a divorce may be obtained in this State, the decree against a resident of this State will not be recognized here unless the defendant was served personally within the jurisdiction of the court or duly appeared in the action. (McGown v. McGown, 19 App. Div. 368; affd. on opinion below, 164 N. Y. 558.) The late Federal decisions although disapproving of the doctrine that the courts of one State may upon grounds of public policy decline to give full faith and credit to judgments recovered in another State or territory, sustain these decisions of our court upon the ground that the foreign State or territory did not obtain jurisdiction over the non-resident by substituted service. (Haddock v. Haddock, 201 U. S. 562.) This rule, however, must, by the controlling authority of the Federal decisions, be limited to cases where the matrimonial domicile was not in the foreign State or territory for if the matrimonial domicile be in the State or territory where the action.is brought, the court there may acquire jurisdiction over a non-resident defendant by substituted service and its decree must be accepted in every other
Lead Opinion
Judgment affirmed, with costs. Houghton, J., dissenting. Ho opinion. Present — Patterson, P. J., McLaughlin, Laughlin, Houghton and Scott, JJ. (Concurring memorandum by Laughlin, J.)