78 N.Y.S. 743 | N.Y. App. Div. | 1902
It is doubtful whether the evidence is sufficient to sustain the judgment. The parties were married on the 11th day of February, 1886, and lived together until the 1st day of November, 1898; but, according to the plaintiff’s testimony, they ceased to cohabit after the spring of 1895. The only evidence concerning the conduct of
It is, however, unnecessary to decide this question at the present time, for a new trial must be ordered on another ground, and additional evidence may be introduced of such a character" as to materially change the aspect of the case in this regard.
■ The judgment deprives the appellant of property and of contract property rights, and his exceptions fairly present the question as to whether his property has been taken without due process of law, Ayithin the meaning of section 1 of the 14th amendment to the Federal Constitution. The defendant did not institute the action and he did not ask that it be tried. The plaintiff forced it to trial against his will, and a judgment resulted which deprived him of property without his. having been heard in defense of his rights. This the Supreme Court of the United States has quite recently unanimously decided may not be done. (Hovey v. Elliott, 167 U. S. 409.) Prior to that decision, it had been declared by numerous adjudications in this jurisdiction that in an equity suit the answer of a defendant who has been adjudged guilty of contempt in failing to obey the mandate of the court might be stricken out. (Walker v. Walker, 82 N. Y. 262; Brisbane v. Brisbane, 34 Hun, 339; Quigley v. Quigley, 45 id. 24; Gray v. Gray, 84 id. 347; Knott v. Knott, 6 App. Div. 590.)
In the exhaustive opinion delivered by Mr. Justice White in Hovey v. Elliott (supra) the decision of our Court of Appeals in Walker v. Walker (supra) is considered and, in effect, overruled. The doctrine of the cases in our courts, to which reference has been made, is not reconcilable with the decision of the Supreme Court of the United States in Hovey v. Elliott. There is no room for distinction ; and it being a Federal question, it is our duty to follow the Supreme Court of the United States. (Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y. 190; Hintermister v. First Nat. Bank, 64 id. 212.)
The reason upon which the rule expounded by the Supreme Court is based would seem only to forbid striking out a party’s pleading on account of his contempt, and then refusing to recognize his right
The orderly administration of justice required that the learned trial judge acquiesce, as he did, in the decision of the Special Term_ that being a court of co-ordinate jurisdiction, in striking out the answer. He very properly left the validity of that order to the determination of the appellate court. Under the decision, of the Supreme Court of the United States the plaintiff may not bring the case to trial and insist that the defendant shall not interpose any defense thereto. Consequently, under these circumstances, the order of the- Special Term in striking out the answer ■ should have been treated as a nullity, and the exclusion of the defendant’s evidence was erroneous.
The judgment must, therefore, be reversed and a' new trial granted, but without costs.
Yak Brúnt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment reversed and new trial ordered, without costs.