28 N.Y.S. 154 | New York Court of Common Pleas | 1894
In an action for divorce from the bonds of matrimony, with jurisdiction of the subject-matter and the parties, the civil tribunal of the first instance of the department of the Seine in the city of Paris, in the republic of France, gave judgment in favor of the plaintiff, with an allowance of 800 francs a month alimony for the support of herself and children. Reciting this judgment, and the further facts that specific installments of alimony are due and unpaid; that the defendant has departed from France, and is now resident in the state of New York; that he left no property in France by which the judgment for alimony might be satisfied; that he is owner of property in this state to the amount of $100,000; that he threatens and intends to dispose of this property in fraud of the plaintiff’s rights, and to escape from the jurisdiction of the courts of the state; and that the plaintiff will be remediless without the relief prayed for,—the complaint demands judgment— First, that the decree of the French court be made the decree of this court, with the same force, effect, and validity, and be enforced against the defendant by this court in the same manner, as if said decree were the final judgment of this court; secondly, that the defendant be adjudged to pay plaintiff the alimony in arrear, and future alimony in the sum of $154.60 a month; thirdly, that defendant be required to give security for said future "alimony; fourthly, for sequestration of defendant’s property in this state; fifthly, for an injunction against the disposition of defendant’s said property; and, sixthly, for other and further relief. To the complaint a demurrer is interposed, on the grounds that the court has no jurisdiction of the subject of the action; that two causes of action are improperly united; and that the complaint does not state facts sufficient to constitute a cause of action.
Argument is unnecessary to show the first two positions to be untenable. Obviously but one cause of action is exhibited, and of that the court has unquestionable jurisdiction. Roblin v. Long, 60 How. Pr. 200. Indeed, the single objection to the complaint, urged in the brief of defendant’s counsel, is that it is insufficient in substance. But, if the facts stated show a right to any relief, whether legal or equitable, the complaint is invulnerable on demurrer (Johnson v. Girdwood [Com. Pl. N. Y.; filed March, 1894] 28 N. Y. Supp. 151, and citations), and for the unpaid installments of alimony awarded to her by judgment in personam of the foreign court the plaintiff exhibits a clear and incontestable cause of action (Barber v. Barber, 21 How. 582; Dunstan v. Higgins, 138 N. Y. 70, 33 N. E. 729). The objection that a judgment for money only would be more favorable to plaintiff than a judgment for money and sequestra