author:
      Per Gariam.
     Danforth, J.

text:
    James J. O'Dea, Appellant, v. Mary O'Dea, Respondent.
    In July, 1844, defendant, who was then residing in Toronto, Canada, married K.,in this State and lived with him here as his wife until January, I860, when she left him and returned to Toronto, where she continued to reside until 1865. K. removed to, and became a resident of Ohio, and in 1864, after a residence there of more than a year, he commenced an action in that State for divorce on the ground that defendant had been willfully absent from him for more than three years. A copy of the petition and summons were mailed to defendant at Toronto,' and were received by her. ISotice of the filing of the petition, the purpose thereof, the time for hearing, and that depositions would be taken at Toronto at a time and place named, was duly published. Depositions were taken in pursuance of said notice, defendant being present but taking no part personally or by counsel. Ho other service was made upon defendant; the service made was, under the laws of Ohio, a legal service. A divorce was granted in 1864. By the terms of the decree, each party was “ restored to the rights and privileges of unmarried persons.” Defendant afterward married the plaintiff, and they lived together as husband and wife until 1880. Plaintiff, prior to-liis marriage, knew of defendant’s former marriage and of the divorce proceedings, bat not of the particular circumstances under which the decree of divorce was obtained. At the time of such marriage K. was and is still living in Ohio. In an action to have the marriage between the parties annulled, on the ground that defendant, at the time of such marriage, had a husband living, and that her former marriage was still in full force, held (Miller, Danforth and Finch, JJ., dissenting), that the Ohio court acquired no jurisdiction over the defendant and the decree of divorce was, as to her, inoperative and void; that, therefore, the marriage between her and plaintiff was illegal and void.
    Argued October 12, 1885;
    decided December 22, 1885.)
    Appeal from oraer of the General Term of the Supreme Court, in the fourth judicial department, made the second Tuesday of June, 1883, which reversed a judgment in favor of plaintiff entered upon the report of a referee.
    The complaint in this action alleges and it was proved that the parties intermarried in this State on the 30th day of August, 1866, and from that time until shortly before the commencement of the action in 1880, lived and cohabited together as man and wife. The husband sued to have the marriage contract declared void and the marriage annulled upon the ground that at the time it took place a former husband of the defendant was living and the marriage with him was then in full force. The defendant by answer denied all the criminatory allegations.
    The referee before whom the issue was tried found upon evidence sufficient, if admissible, that in July, 1844, the defendant resided in, and always before that time had been a resident of, Toronto, Canada West, but at that date was married in Lewiston, in this State, to one K. and lived with him'as his wife until January, 1860, when 'she left him and returned to Toronto, where she continued to reside until 1865, and he removed from this State “to, and became a resident of, Cuyahoga county in the State of Ohio,” where in March, 1864, and after a residence of more than one year, he commenced an action in the Court of Common Pleas of that county, “for the purpose' of obtaining a divorce from the defendant in this action, for the reason, as stated in the petition then filed, that she had been willfully absent' from him for three years or more. That a copy of this petition and of the summons issued thereupon were on the 24th of March, 1864, sent, by mail, to the defendant at Toronto, where she then resided, and were received by her soon after, that by said summons she was required to answer in the action by the 9th day of April, 1864. That a notice of the filing of the petition, and of the purpose thereof, and that said petition would be presented for hearing at the May Term of said court of Common Pleas, and that depositions would be taken in Toronto at a time and place mentioned, were duly published in a newspaper in said Cuyahoga county. “ That on the 20th day of April, 1864, depositions in said action were taken in pursuance of said notice. That the defendant was present when such depositions were taken, but took no part personally, or by counsel, at the taking of the same. That no other service of the process or proceedings in the action was made upon the defendant than is above stated; and that such service so made was, according to the Laws of the State of Ohio, a legal service upon the defendant, but that she never in any way appeared in said action.”
    It also appeared that on the 24th day of May, 1864, the Ohio court, upon the proofs, found the facts stated in the petition to be true, that the defendant was willfully absent from the petitioner without cause, for more than three years anterior to the filing of the petition, and had at all times remained so willfully absent from him, and therefore it was decreed that the marriage contract alleged in petition, and heretofore existing between the parties, be and the same was “ declared annulled, cancelled and void, and no longer binding on the parties,” and each was “restored to the rights and privileges of unmarried persons.” The referee further found that the defendant afterward married the plaintiff and lived with him as above stated. It appeared from uncóntradicted evidence that plaintiff knew the person he was about to marry had been a wife and was not a widow; that he also knew of the divorce proceeding during its pendency, and in 1864 was informed of the result, but the referee finds that “he had no knowledge of the particular manner or circumstances under which the divorce was obtained,” and that when the plaintiff and defendant married, K. was living in Ohio and is still living there.
    • As conclusions of law the learned referee found that the Court “ of Common Pleas of Cuyahoga county, Ohio, never acquired jurisdiction over the person of the defendant in the proceeding prosecuted in that court, and therefore that the decree made and entered in it was without jurisdiction and so void and of no effect.” He directed judgment in favor of the plaintiff, declaring his marriage with the defendant to be illegal and void.

      George J. Greenfield, for appellant.
    A suit to dissolve a marriage is a proceeding in personam and not in rem. (People v. Baker, 76 N. Y. 78; Hunt v. Hunt, 72 id. 217.) To sustain a foreign divorce, jurisdiction of the person of the defendant, not a resident of that State, must be acquired, as in any other action, by the personal service of the summons within the territorial jurisdiction of the court, or by voluntary appearance. (Borden v. Fitch, 15 Johns. 12; Shumway v. Stillman , 6 Wend. 447; Bradshaw v. Heath, 13 id. 407; Vischer v. Vischer, 12 Barb. 640; McGiffert v. McGiffert, 31 id. 69, Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Todd v. Kerr, 42 Barb. 317; Moe v. Moe, 2 T. & C. 647; Phelps v. Baker, 60 Barb. 107; People v. Baker, 76 N. Y. 78.) The alleged desertion of her husband, Kollmyer, by the defendant, occurred in this State, before Kollmyer removed to Ohio, and acquired a domicile there. Such desertion was not a valid ground of divorce in this State, and jurisdiction was not acquired by the' Ohio court. (Holmes v. Holmes, 4 Lans. 388; Moe v. Moe, 2 T. & C. 647; 3 Am. L. Reg. [N. S.] 193.) The actual notice of the Ohio suit, and the presence of the defendant at the taking of testimony in Toronto, did not confer jurisdiction on the Ohio court. (Shepard v. Wright, 60 How. 512; Holmes v. Holmes, 4 Lans. 388; Dunn v. Dunn, 4 Paige, 425; Shetzler v. Shetzler, 2 Ed. Ch. 584; Fenton v. Garlick, 8 Johns. 94; Phelps v. Baker, 60 Barb. 107; Jones v. Jones, 36 Hun, 414; Ewer v. Coffin, 1 Cush. 23; Whart. Confl. of Law, § 649 ; Confl. of Baw affecting marriage and divorce by Judge Redfield, 3 Am. L. Reg. (N. S.) 210; Irby v. Wilson, 1 Dev. and Bat. Eq. 568; Prosser v. Warner, 47 Vt. 667; Reed v. Reed, 52 Mich. 117; Wetherbe v. Wetherbe, 20 Wis. 499; Lyon v. Lyon, 2 Gray, 367; Garner v. Garner, 56 Md. 127; Pennoyer v. Neff 95 U. S. 714; Price v. Hickok, 39 Vt. 292; Bischoff v. Withen, 9 Wall. 812; Flower v. Parker, 3 Mason, 251; Reel v. Elder, 62 Penn. 308; Hart v. Samson, 110 U. S. 151; Penn v. Hayward, 14 Ohio St., 302; Williams v. Wilton, 28 id. 451.) Mere acquiescence in a void decree does not render it binding on the defendant. (Holmes v. Holmes, 4 Lans. 388; Todd v. Kerr, 42 Barb. 317; Jones v. Jones, 36 Hun, 414.) Even if the Canada law should come in question, it cannot, in the absence of evidence, be presumed that it is contrary to the law of this State or the principles of natural justice. (Shepard v. Wright, 60 How. 512.) The defendant was not subject to the jurisdiction of the Ohio court. (Mellen v. Mellen, 10 Abb. N. C. 331, 333; Hunt v. Hunt, 72 N. Y. 243; Cheever v. Wilson, 9 Wall. 108; Story's Confl. of Laws (8th ed.), 311; Dutcher v. Dutcher, 39 Wis. 651; Schonwald v. Schonwald, 2 Jones Eq. (N. C.) 367; Colvin v. Reed, 55 Penn. St. 375; Reel v. Elder, 62 id. 308; Irby v. Wilson, 1 Dev. and Bat. Eq. (N. C.) 568; Briggs v. Briggs, L. R., 5 P. D. 163; Harvey v. Farnie, 6 id. 35; Pitt v. Pitt, 4 Macq. 640.) The plaintiff has a standing in court, and is not estopped by reason of his knowledge of the divorce decree. (Kinnier v. Kinnier, 45 N. Y. 543; Singer v. Singer, 41 Barb. 139; Wilmon v. Flack, 96 N. Y. 520; Thorp v. Thorp, 90 N. Y. 602; Smith v. Smith, 79 Mass. 210; Holmes v. Holmes, 4 Lans. 392; Todd v. Kerr, 42 Barb. 317; Collins v. Collins, 80 N. Y. 1; Mann v. Mann, 75 id. 614.)

      De Lancey Crittenden for respondent.
    As a basis for relief the plaintiff in an action to annul a marriage, upon the ground that the former husband was living, must establish the fact that the former marriage was in force at the time of the commencement of his action. (Code of Civ. Pro., § 1743 ; Roberts v. O.

      & L. C. R. R. Co., 34 Hun, 324; Moore v. Hegeman, 92 N. Y. 521.) The court in Ohio, or in this State, were Kollmyer to seek relief, would not permit him to question that divorce. (Kinnier v. Kinnier, 45 N. Y. 535; Nichols v. Nichols, 25 N. J. Eq. 60; Elliott v. Wohlfrom, 6 So. Law Rev. [N. S.] 618.) Were Kollmyer to die during the defendant’s life, the courts would not listen to a claim that she held the status of widowhood. (Whitsell v. Mills, 6 Ind. 229; Claim of Burr, 11 Opin. Att'y-Gen'l, 1; William's Appeal, 92 Penn. St. 69; In re Ensign, 32 Alb. L. J. 262; Moore v. Hegeman, 92 N. Y. 522; Roth v. Roth, 104 Ill. 48.) Upon the granting of the decree respondent had no former husband living, and at the time of her marriage in this .State she was not a wife of her former husband, for dower or distribution, in his real or personal property. (2 Bish. on Mar. and Div. § 705; 2 id. [6th ed.], §§ 165, 166, 167; People v. Baker, 76 N. Y. 78.) Full jurisdiction in the Ohio court was conferred over both parties to that action. (Hunt v. Hunt, 72 N. Y. 242; Kinnier v. Kinnier, 45 id. 540; Lange v. Benedict, 73 id. 26; Pennoyer v. Neff, 95 U. S. 727; Williams v. Armroyd, 7 Cranch, 423; Whar. Confl. of Laws, §§ 236, 237.) Respondent had no election to treat “ at her pleasure ” the judicial decree, as legal or illegal, as her feelings or interests should dictate. Status of the parties was controlled by the law of the Nation or State in which the domicile had been gained. (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 304; Thornton v. W. Ry. Co., 81 id. 467; Powers v. Benedict, 88 id. 609.) Full faith is to be given the decree and judicial proceedings of the State of Ohio in the action between the parties to such former marriage, wherein the defendant was respondent and upon which not only she but the plaintiff in that action and the appellant here have each and all relied, given full faith and credit and acted. (Swan & Critch. Stat. of Ohio, 1 R. S., chap. 37, 509, 510, 511, §§ 1, 3, 4, 5, 6, 8,15; note 2, § 3, 511.) That State had supreme and unlimited control over the status of its citizen, and the marital relation, as it affects the citizen, forms part of his status. (Strader v.
      Graham, 10 How. [U. S.] 82; Pennoyer v. Neff, 95 U. S. ,714; Cheever v. Wilson, 9 Wall. 108.) To banish the idea of secrecy and fraud, notice of some character is required. (People v. T. H. Car Co., 87 N. Y. 140.) Abstruse definition is not required as to what constitutes “ actual notice,” respondent’s receipt of the process having been a fact, and actual notice given to and served upon her, she being the sole defendant and the only person to be affected by it. (Williamson v. Brown, 15 N. Y. 354; Parker Mills v. Jacot, 8 Bosw. 175.) The respondent’s status and matrimonial relation pendente lite and upon the entry of the decree dissolving her marriage was not that of a citizen of the State of New York, nor was it sought to affect the rein there. (Ennis v. Smith, 14 How. [U. S.] 400; Roth v. Roth, 104 Ill. 46; Hunt v. Hunt, 72 N. Y. 217; Kinnier v. Kinnier, 45 id. 535; Williams v. Armroyd, 7 Cranch, 423; Roth v. Ehman, 104 Ill. 35; Story’s Confl. of Laws, §§ 223-4, 228, 230; Whar. Confl. of Laws, § 211; Bish. on Mar. & Div. [5th rev. ed.] 113, 113a, 162, 164.) All the matters involved in the Ohio action are res adjudicata. (Kamp v. Kamp, 59 N. Y. 215.) This marriage of respondent and appellant is neither contra bonos mores, nor in any manner void at law or upon application of equities or good conscience. (Singer v. Singer, 41 Barb. 139; Nichols v. Nichols, 25 N. J. Eq. 60.) By reason of his loches creating estoppel, the conclusive judgment dissolving the former marriage, unaffected by any act of either party to that action, plaintiff" cannot recover. (Kinnier v. Kinnier, 45 N. Y. 535; Simmons v. Simmons, 37 Hun, 551; Hynes v. McDermott, 91 N. Y. 451; 20 Weekly Dig. 522.)
   Per Gariam.

We think the case of People v. Baker (76 N. Y. 78), is conclusive on the question brought up by this appeal, viz.: Whether the court in the State of Ohio had jurisdiction to try the issue raised by the petition of K., as between him and his wife, she then being a non-resident of Ohio, and never a resident of that State, nor at any time there served with process of the court. There are some differences in the detail of the circumstances of the two cases, but we think not enough to lead to any change in the result, nor sufficient to require a reconsideration of the law affecting it. The Baker Case was of great importance, involving, as it did, the liberty of a citizen; it was most fully argued, and we do not perceive that the discussion in the case at bar has developed any new principle, or brought to light any authority which was not then weighed by us. We do not think the question can be more fully investigated. Concerning the result there was, it is true, a dissent by the late learned chief judge, and the opinion recognized the fact that in other States, judgments contrary to the authorities followed in this State liad been rendered. This conflict of opinion, however much to be regretted, continues, and it yet remains for some ultimate authority to relieve the point from the difficulties now attending it, and determine the civil rights of parties whose relations, as legally defined by different State tribunals, are liable to be regarded on one side of the State line as matrimonial, and on the other side as meretricious. Adhering, however, to the rule established in this State, a majoj'ity of the court are of opinion that the order appealed from should be reversed and the judgment of the Special Term affirmed, but without costs.

Danforth, J.

(dissenting). The jurisdiction of the Supreme Court to grant the relief sought for in this action is purely statutory (Code, § 1745), and depends upon the existence of two facts there stated, and in substance repeated in the complaint. First. That the former husband was living at the time of the marriage in question; and second,, that the marriage between that former husband and the defendant was then in force. As to the first there is, upon the evidence, no dispute. The controversy is over the second, ánd is to be determined as effect is given or denied to the judgment rendered by the Ohio court. In Kinnier v. Kinnier (45 N. Y. 535), full effect was given to a judgment of divorce granted by a sister State, although for a cause not deemed sufficient in this State, while in People v. Baker (76 N. Y. 82), it did not avail the defendant who set it up. In the Kinnier Case the plaintiff was the second husband and unsuccessfully invoked the judgment of the courts of this State to annul his marriage. There both parties to the divorce proceedings were in the State when they were had, and parties to the suit. In the Baker Case the defendant was served with process by publication only, and his second marriage was held to be bigamous. The present suit was commenced soon after the determination of -the Baker Case, and as stated on the argument, was suggested by it. The learned counsel for the appellant now relies upon it as furnishing a decisive answer to the decision of the court below.

The judgment in Baker's Case (76 N. Y. 78) was in assumed compliance with the rule theretofore uniformly laid down by the courts of this State, and is to be followed as a precedent in similar cases, but it should be taken in connection with the facts which seemed to warrant it, and so taking it, I feel at liberty to dissent from the conclusion of the majority of the court in the one at bar, and more readily because a limitation to the doctrine appears to have been in the mind of the court in that instance.

• In the language of the learned judge, whose opinion declared the views of his brethren, “ it presents this question : Gan a court, in another State, adjudge to be dissolved and at an end, the matrimonial relation of a citizen, of .this State, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, without a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him in his State.

“We assume, in putting this proposition,” says the learned judge, “that the defendant in error was in the situation therein stated.” “ We think,” he adds, “ that it may properly be thus assumed; ” and that importance was attached to this assumed situation of Baker, is apparent, not only from the care taken in stating the proposition, but by the argument by which it is sustained in the face of some evidence to the contrary. It appears, then, in the Baker Case, first, that the person whose rights the court in Ohio sought to affect is not only characterizcd as being at the time a citizen of this State, but as one actually abiding here during the judicial proceedings which were aimed at him. In the case at bar, the defendant in the divorce suit was neither domiciled nor a resident in this State, nor was she within its borders during the pendency of the proceedings therein. She was either domiciled in Ohio, because her husband’s domicile was there, or she was domiciled in Ganada, to which place she went, and where she resided. The latter place, it is said, was her domicile of choice. Assuming that to be so, that her husband’s domicile was in Ohio, and her own in Canada, the question is whether the proceedings instituted by him were valid by the laws of those two places. Valid by the laws of Ohio they are conceded to have been, and there is no finding or evidence that they were not valid, also, by the Jaws of Canada. Second. In the next place there was in the Balter Case no notice of the proceedings save by publication. It is clearly implied in the proposition I have quoted, that if, -first, the defendant had voluntarily appeared in. the divorce suit; or, second, been personally served with process in the State where it was pending ; or, third, had actual notice of the suit, a different conclusion would have been warranted, and effect given to the judgment of the Ohio court.

The whole argument of the learned judge was to show that the admission of the judgment of a court of a sister State, to credit and effect in another, was subject to limitations, and that it could be received only when it did not violate those principles which morality, or its standard of public policy, or municipal regulations require to be specially observed in the State in which the party relying on the foreign judgment had chosen to introduce it. “ There is no principle of comity,” he says, “ which demands more,” and so the ultimate question is treated by him- as one of expediency, but requiring nevertheless the rule of the foreign law to be adopted, “ Quatenus sine prejudicio indulgenter fieri potest.” It was not intended to deny the well-settled rule that where judgment has gone against a party in the State of his residence, or where not being a resident he has voluntarily appeared in the action, or where he has been served with process within the State where the action is pending, and so has been brought under the authority of its courts, then under the provisions of the Constitution (Art. 4, § 1) and the act of Congress (U. S. E. S., § 905), the judgment is of the same force and validity in other States as in the one where it was rendered. But where the jurisdiction of the court rests only on the fact that the moving party had his domicile within such jurisdiction, its claim to recognition in other States rests on the ground of comity, and this cannot prevail where the judgment sought to be accredited has been rendered without giving the party to be affected an opportunity to be heard. But as I understand the Baker Case, it concedes that this rule does not inexorably require either service of process or voluntary appearance, but may be satisfied when the party has in any way been given an opportunity of being heard before judgment, or in the language of the third condition of the question stated {supra) in the Baker Case, has had “ actual notice” of the judicial proceedings.

In Doughty v. Doughty (N. J. Eq. Rep., 12 C. E. Gr. 315; 1 Stew. 581,582), the court treat the question of jurisdiction in a divorce suit, arising out of the status and domicile of one of the parties, in the same spirit in which it is treated in Baker’s Case {supra), and cite the New York authorities, but the court say: “A judgment of divorce, proceeding from a jurisdiction founded on domicile, would not contravene essential rules of natural justice if actual notice to appear had been served on the defendant residing abroad. It is true that a notice so served on a litigant, out of the jurisdiction in which a suit is pending, may add nothing to the judicial right to take "cognizance over the cause, but, nevertheless, it may impart a'quality to the resulting judgment that will serve as a credential to it in a foreign jurisdiction,” and refuse to accept the one,then in question for reasons like those given in Baker's Case, saying: “ the residence of the defendant to it was known; she was not summoned; she did not appear, and she was not served with process, nor was notice given to her.” . Indeed as the object of all service is to give notice to the party on whom it is made, that he may be aware of, and may resist the relief sought against him; when that is substantially done, so that the court may feel confident that service has reached him, it would seem that everything has been done that is required.

This is said in Gibbs v. Ins. Co. (63 N. Y. 114, 127), and is repeated in Pope's Case (87 N. Y. 137, 140) with the addition, that any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. Indeed it is difficult to see how it could be otherwise. We hold it enough within the strictest rule to serve process upon a defendant, although he is in transit — passing through the State, neither abiding here, nor having any intention to remain. Of what less real and substantial efficacy for all beneficial purposes is the actual delivery of the paper outside the limits of the State ? So, as against a domiciled citizen of a State, a judgment rendered upon such substituted service is by the law of the State permitted, although he is in fact absent. And it is valid and binding upon him, though he is actually abiding in another State, and has neither appeared in the suit, nor had actual notice of it. His absence, whether temporary or prolonged, makes no difference. (Hunt v. Hunt, 72 N. Y. 217.) The same principle of comity is applied in favor of one claiming title under a foreign law, as In re Waite (99 N. Y. 433), where after a most exhaustive and elaborate examination of authorities it was decided upon those and upon principle, that while the statutes of foreign States have no force or effect within this State, and hence the statutory title of foreign assignees in bankruptcy can have no recognition by virtue merely of its origin, yet, that the comity of nations permits a certain effect to be given to titles so derived, when it can be allowed without injustice to our own citizens. So in many other instances effect is given by way of comity to the laws of other States, as in recognizing an administrator or guardian appointed under another jurisdiction. He may not act de jure, but it does not follow that his claim to property or to the care of a minor is to be denied.

In the case at bar it was shown that the process from the Ohio court was actually delivered to the defendant and received by her, and moreover that she was personally present at the talcing of depositions in the case on the part of the plaintiff, going thither, the proof is, “because she had been notified.” Now although it may be said that, within the strict rules of law, she was not made a party to the adjudication, it cannot be doubted that under the argument in the Balter Case, and the authorities to which I have referred, the defendant had all the notice which reason and natural justice requires should be given and that by it all danger of imposition upon the party or the court was excluded.

Third. In another respect, although of much less importance, there is another difference to be noted in the relation of the two cases to our law. At the time of the decision of the Baker Case (January 21, 1879), an order for service by publication, or without the State, in a divorce case, could only be had “ where the defendant is a resident of the State ” (Code of Civil Proc., § 438, subd. 4), and to that fact reference was made in the opinion; but those words were by a subsequent amendment (Laws of 1879, chap. 542) stricken out and the law restored to its original condition, so that now judgment in this State may be rendered against a non-resident defendant in a matrimonial action, either for a separation, a divorce absolute, or an annulment of a marriage, upon service of the process upon him or her outside of the State, or by publication.

It is apparent, therefore, that the subject was before the legislature for deliberate examination, and their conclusion will not permit us .to say that public policy is opposed to such proceedings as those in Ohio, now under review, for it authorizes the doing in this State of the same thing, in the same manner and with the same object. Moreover, as if to remove any inequality in applying it, and relieve the married woman from the traction of that legal fiction by which she is supposed to follow and be with the husband, although, in fact, separated by intervening continents, it provides that if she dwells within the State when she commences an action for divorce or for separation, she is deemed a resident thereof, although her husband. resides elsewhere (§ 1768). It also directs judgment when default occurs in appearing or pleading, whether the summons and complaint has been personally served in the State, or whether service has been made by publication, and this is so whether the action is to annul the marriage, or for a divorce, or a separation. (§ 1774.)

The law of procedure under which the Ohio court acted was precisely like our own, and I can find no circumstances in the case which require us to depart from the rules of comity, which exact consideration for the laws and judicial proceedings of other States, and on which we depend for respect to our own. I have so far looked at the case from the appellant’s stand-point, and treated the rights of the respondent as if she had made herself in Canada a domicile separate from that of her husband. Even in that view, the learned .court below committed no error in holding that there was no substantial ground upon which the plaintiff could invoke its interference, and that the case was not one which required the marriage ■ between these parties to be annulled. But another, and I think correct statement, of the respondent’s position, permits us to say that her domicile was, at the time of the divorce proceedings, with her husband in the State of Ohio, and in that respect also the case differs from the Baker Gase.

Except as altered by statute, the rule of the common law, which identifies the married woman with her husband, is adhered to by the courts of this State, and upon the question now before us, its decisions require us to hold that the domicile of the husband is prima faoie that of the wife, not only because the home of one is the home of the other, but because it is her duty to go with him where he goes, and dwell with him where he dwells. Indeed under the maxim referred to it could not be otherwise. One in person, and that person the husband, the common law by no fiction could give her a separate domicile, nor even admit of its possibility. Therefore in Baker's Case, the wife, plaintiff in the divorce proceedings, in theory of law had her domicile with her husband, and thus both were residents and citizens of this State. In the case before us, the husband was a legal citizen of Ohio, and the defendant’s domicile, by virtue of the same theory, also in that State.

But in Hunt v. Hunt (supra) it is said that “ from necessity, she may in certain cases have a domicile in another jurisdiction than that of her husband, as when they are living apart under a judicial decree of separation, or when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce,” and so the reason of the rule weakens in power when in extreme cases the conduct of the husband has been such as to make it proper for the wife to seek relief from her obligation to have the same home and interest with him, and altogether ceases when a judicial decree has separated.and adjudged them to live apart. These exceptions are justified, the first upon the ground that otherwise “ the husband might constantly change his domicile, and drawing that of his wife after his, prevent her finding a court having that jurisdiction of person which would enable her to try her suit for redress and relief.

“It is evident,” says the learned judge, “ that this reason,” by which I understand him to mean the reason of the rule, viz.: the theoretic identity of person and of interest between the husband and the wife in the eye of the law, “ will also operate in favor of the husband, so that where he has ground for a suit by reason of the misconduct of the wife, sh.e may not so often change her domicile as to baffle him in his- pursuit of a remedy.” Now in the case before us no ground can be found, upon which.either exception can be placed. .By deliberate stipulation in this case, it is conceded that defendant in the Ohio suit—that is the wife, left her husband, the plaintiS in that suit. No fault or error in behavior, or .bad treatment on bis part is suggested. On the contrary, the record -shows that at the time of the commencement of the suit m December, 1864, she had beén willfully absent from him for more than three years ; that he had applied to her to live with him, and she had refused to do so ; that always while they lived together, he had provided well for her and treated her properly.

The referee also finds that she left her husband. He did not go to Ohio to evade the law, nor to procure a divorce, nor to draw her from a friendly jurisdiction. She left him. He went to Ohio in good faith to reside and acquire a domicile, and he has since resided there, now nearly twenty years. So far as appears he was without fault, and the removal of his wife entirely without cause, and willful. Upon what ground then has she acquired a separate domicile %

The chief case cited by the appellant is Borden v. Fitch, (15 Johns. 121), which is relied upon as “an express decision, to the effect that the acquisition of a new domicile by the husband does not draw the wife into the same jurisdiction.” It furnishes no exception to the rule laid down in Hunt v. Hunt (supra). Fitch and his wife were inhabitants of, and domiciled in Connecticut; they lived together there until October, 1808, when upon her application and notice, and after appearance, and contest by him, the general assembly of that State, for abundant cause, decreed a separation at her pleasure, with, to her, “ the privileges of a feme sole” and alimony to be paid by him annually. At all times after she continued to reside there, but in 1813, upon an allegation that she had willfully deserted him, he obtained, in Vermont, a decree of divorce. He afterward married in this State, and was shortly after sued by the second wifels mother for debauching her daughter. He relied upon the Vermont divorce, but without success, the court holding that the act of the legislature of Connecticut should be deemed a divorce a mensa et thora, and involved a legal separation, and so the case was brought within the first exception I have referred to, viz.: a separation by judicial decree, or what is of equal or greater effect, a legislative enactment.

I do not think it necessary to inquire how the case would stand if the husband had deserted his wife; such a case is not before us. Until we are prepared to give up the common-law rule as respects the relation and unity of man and wife, we cannot hold that the wife at her pleasure, and without cause, may establish a separate residence or a domicile beyond the man’s control. It may be conceded that a judgment, obtained as was the one we have considered, Avould be of no effect as against the person, nor as one in rem, except as it was enforced or took effect Avithin the State, but it cannot be doubted that the courts of Ohio had jurisdiction over the plaintiff IL and over the subject-matter of the suit there instituted by him. The judgment had force Avithin that State, not only as to him, but the defendant should she go therein. BTo marital right could be claimed by her. Moreover by marriage a status is acquired which implies not only membership in a family, with certain rights, but a relationship in which the State is interested, and which therefore is subject to its control» And Iioavever regarded it is apparent that a judgment in the rendering of which the court exercised such jurisdiction as it did in this case, must have a very different influence from one of any other character. The distinction is conceded in the cases before referred to (Hunt v. Hunt; People v. Baker, supra), and distinctly declared in Pennoyer v. Neff (95 U. S. Rep. 714.), where the effect of judgments obtained Avithout personal service of process, in actions against the person, or property, or to establish a status, is considered. In the first, it is said to avail nothing; in the second, to be good against property Avithin the State whose courts render it, but not out of it; in the last, to determine the status or condition of the resident by dissolving the marriage tie, and therefore necessarily precludes the other party from asserting, or any court in any State from holding that the marriage so dissolved exists or is in force.

It follows, I think, that the true and safe rule is as stated by Cooley (Canst. Lim. 400), that the actual bona fide residence of either husband or wife within a State Avill give to that State authority to determine the status of such party, and to pass upon any questions affecting his or her continuance in the marriage relation, and that the courts of that State, authorized by its legislature to take cognizance of the subject, may lawfully pass upon such questions and annul the marriage for any cause allowed by the local law, .that jurisdiction over the opposite party may be acquired in such manner as the legislature may direct, and whether by service in, or notice out of the 'State, or by publication, is sufficient to j ustify a decree changing the status of the complaining party, and thereby terminating the marriage. By holding otherwise we declare our own statutes .'(Code Civ. Proc., § 438, sub. 4; § 1774), upon the same subject unavailing, and compliance with them a useless and idle formality.

There is another proposition yet to be considered and answered in his favor before the plaintiff can succeed on this appeal. The Baker Case ('supra), however much or little it may be regarded as differing in principle from the one before us, brought before the court a very different case, arising under a different statute. His conviction for bigamy was upheld because he contracted a.marriage in this State in violation of the act concerning divorces, and for the purposes of that act, and proceedings for its violation, and the punishment of bigamy, it was evidently thought immaterial whether his first marriage was “in force ” or not. Referring to the claim urged for the prisoner that our laws permitted such proceedings as were had against him in the Ohio court, the learned judge says: “ This is but to say that on the principle of the comity of States, we should give effect to this judgment.” “But,” he continues, “this principle is not applied where the laws and judicial acts of another State are contrary to our own public policy, or to abstract justice, or pure morals. The policy of this State always has been that there may of right be but one sufficient cause for divorce a vinculo, and .this policy has been upheld with strenuous efforts.” The divorce then in question was not for that cause and it was not to be recognized. Under those laws a person whose guilty act has made divorce possible cannot marry a second time, if merely the former wife or husband is living. . (2 R. S. 139, §§ 5, 6.)

Those are the words of prohibition, and to bring a party within them it is necessary only to show, first, a prior marriage, and second, that the parties thereto are living. “It does not import that the relation still 'continues, or, on the other hand, that it has ceased. Upon that point it is silent, but limits the inquiry to the dry fact whether the person with whom the prior marriage was contracted still lives at the time of the subsequent marriage.” (Cropsey v. Ogden, 11 N. Y. 233.) In that case in answer to the claim of counsel that the prohibition of the fifth section should be read as if it said “ during the life-time of any husband or wife to whom the party was formerly married,” the court declined to do so, saying “ the meaning would be very much altered if we should yield to the request. So read, it would or might import that the relation of husband and wife must still continue between the former husband and wife, at the time of the subsequent marriage,” adding “ the word ‘former ’ as used in the section in question” (§ 5), “ imports that the relation of husband and wife once existed, but neither affirms its existence nor denies its termination. The prohibition then relates to the case of either party to a marriage, whenever and wherever contracted, both the parties to which are living, and prohibits either to contract a second or subsequent marriage during the life-time of the other, except in certain specified cases. This, construction has recently been approved by us with great significance in overruling Hovey's Case (5 Barb. 117), where it was held by the Supreme Court that after the dissolution of a marriage for adultery, the marriage contract was at an end and the relation of husband and wife no longer existed between the parties, and if the guilty party marries again he is not within the penalty of the act against bigamy, but in Faber’s Case (92 N. Y. 146) we held that for the purpose of enforcing the statutory prohibition, a person against whom a divorce had been obtained is regarded by the statute as having a husband or wife living so long as the party obtaining the divorce lives and that a conviction could be had, although the former marriage had been dissolved. Whether the former marriage was in force or not at the time of' the offense was entirely immaterial. The statute (Code of Procedure, § 1742), brought before us by this appeal, permits no such construction. It adopts the language of the former statute, but adds a new term to it. “ An action,” it declares, “ may be maintained to procure a judgment declaring a marriage contract void, and annulling the marriage, if at the time of the marriage the former husband or wife of one of the parties was living, and the marriage with the former husband and wife was then in force.” This last condition requires the interpretation which the court in Cropsey v. Ogden (supra) refused to give to the one first referred to.

One is satisfied with the fact of a former marriage and the present existence of the parties; the other requires as much, viz.: (1) A former marriage; (2) the present pxistenee of the parties, and also (3) that the former marriage itself be then in force. JSTow in Baker's Case [supra) the court say (p. 84). “We must and do concede that a State may adjudge the status of its citizen toward a non-resident, and may authorize to that end such judicial proceeding as it sees fit, and that other States must acquiesce so long as the operation of the judgment is kept within its own borders.” So is the whole argument of the learned judge. Hence he says: “ If one party to a proceeding is domiciled in a State, the status of that party, as affected by the matrimonial relation, may be adjudged upon, and confirmed or changed in accordance with the laws of that State.” The claim was indeed made that the State, where the other party was domiciled, might exercise over him or her the same j urisdiction and so apply the statute against bigamy. But that does not contain the governing words of the other. And even if within that opinion the courts of Ohio could not declare the status of the defendant in this State, it could and it did lift the marriage yoke from off the neck of its citizen, relieved him from the “vinculum matrimonii,” and hence although the parties to the former marriage still lived, one of "them was confessedly relieved from all his marital obligations and legally disabled from enforcing those of the other1. She had no husband at least in the State where he lived. The contract was no longer binding on him. It follows that the former marriage cannot be said to have been in force at the time of the marriage which is the subject of this action.

When the statute speaks of a “ marriage then ” (at the time of the second marriage) “in force,” it must mean a marriage by which both parties are bound and as to which the relation of neither party has been changed. What is the allegation of the plaintiff here ? That Eh, living in Ohio, is the husband of the defendant, and the marriage “ in full force.” Neither assertion is true. As to Eh, it must be conceded, under any aspect of the case, the marriage is dissolved, and under any view of the law, that he is discharged from the marriage bond. The judgment operates upon him in Ohio, attaches to, and determines his relation and character. In Moore v. Hegeman (92 N. Y. 521), commenting upon a similar statute of New Jersey, it was said to be very clear “ that it had in contemplation a wife or husband who had not been divorced and who was invested with all the marital rights conferred by a lawful marriage.” If I am wrong in supposing that the facts of this case are not enough to bring it within the proposition, on which the dpinion in Balter’s Case (supra!) stands, then the defendant here might be found guilty of bigamy, because the policy of our law recognizes no divorce save for one cause, and that not the one alleged against her. But there is nothing in that decision which requires us to hold that the former marriage was in force when the second was solemnized. On the contrary, the necessary result of the opinion is that the Ohio decree was good as changing the status of the wife, but not effective in this State to protect her from the imputation of bigamy. If the status of the wife was changed, the marriage was not in force. And in view of these conflicting conditions, the learned judge recognizes the hardship of being “ a husband in name, and under disabilities, or ties, in one jurisdiction, and single and marriageable in another.” If the law is to be so rendered, and this defendant put in that position, it will still remain, that the plaintiff’s case was not brought within the plain language of the statute. It certainly cannot be said that the former husband, as to whom, even under the doctrine of the Balter Case, the dissolution of marriage is absolute, can, in any degree, be held united to the defendant, by the tie which such a relation implies. I think the decree put an end to the contract. But if it had only a partial operation, the marriage cannot be said to be in force; and that the statute requires as a condition of jurisdiction.

One other question remains: Was the evidence on which the referee put his decision competent ? Public policy forbids that a marriage should be dissolved either by the mere consent of the parties thereto, or by a judicial proceeding which has no other foundation than their admissions. Were it otherwise, the morals of the community would be easily corrupted and the forms of law made effectual in the profanation of marriage. Therefore the Oode, which has changed the common-law rule as to the competency of witnesses in civil actions, forbids husband or wife testifying, in an action for divorce on the ground of adultery, to any matter save their marriage. What cannot be done by their testimony should not be done indirectly by any act of theirs, neither by admission in pleading nor by stipulation of counsel. Here we find no evidence of the fact of the former marriage. The pleadings indeed concede it, and counsel have stipulated that it took place. Neither of these things can have any efficacy, except as they were authorized by the parties, and their admission or statement, however formally expressed, should 'have no effect when their testimony as witnesses is excluded. Neither will the law permit such a judgment by default, although in other actions the silence of the defendant is effectual as an admission in favor of the plaintiff. The fact pleaded and the fact stipulated is the vital one in the case, and to permit a divorce under such circumstances is practically to concede that a relation in the continuance of which the State has an interest, may be dissolved, as it was formed, by the simple agreement of the parties.

I have examined the eases, which, as cited by the appellant, seemed to bear upon this question, but find none which requires a different conclusion from the one expressed. In my opinion, therefore, the learned court below did. not err under „ne circumstances of this case, in whatever aspect they may be viewed, in refusing to annul the marriage between the plaintiff and the defendant. They might well hold that the plaintiff’s case was not proven, or if there was irregularity in the proceedings in the court of Ohio, waive it in a spirit of comity and accredit the judgment, rather than pronounce a relation which for nearly twenty years the parties treated as lawful, to have been adulterous. They might also hold that the judicial proceedings in Ohio were effective, and that the interest of society and justice to the parties required that respect should be given to them.

I think the order appealed from should be affirmed and the defendant have judgment absolute, dismissing the complaint.

Ruger, Oh. J., Rapallo, Andrews and Earl, JJ., concur, for reversal; Miller and Finch, JJ., concur with Danforth, J., and dissent.

Order of General Term reversed and judgment of Special Term affirmed.


source: Caselaw Access Project

author: Büger, Ch. J.

license: Public Domain

text:
    The Schenectady Stove Company, Respondent, v. Charles Holbrook et al., Appellants.
    A contract for the sale of goods may not he predicated on an offer which was modified or withdrawn before an unconditional acceptance.
    Under an offer of immediate sale, the buyer cannot extend the times of pay- ' ment, by postponing the time of delivery, without the vendor’s consent.
    On August 16, 1879, plaintiff in answer to a request from defendant’s firm, gave by letter its prices for certain goods, with this statement, “this , price only to hold good till thirtieth September.” On September twenty-second defendants sent an order with directions, to have the goods ordered, put up and marked in a specified way, and sent in five or six shipments, at intervals of ten days or two weeks. In September, prior to the giving of the order, C., an agent of the plaintiff, had made to defendant, a proposition,modifying slightly the written offer ; plaintiff on September twenty-fifth, wrote defendants, acknowledging receipt of order, giving their understanding of the terms, proposed by C.; on September twenty-ithrili, defendants sent another order, claiming, however, that the prices given by 0. were less than as stated by plaintiff; plaintiff returned the order, with letter, stating it was beyond its power to accept. In an action to recover for the goods delivered under the first order, defendants set up as a counter-claim, damages for failure to fill the second order. Held untenable; that nó contract was made for the sale of the'goods specified in such order.
    (Argued December 2, 1885;
    decided December 22, 1885.)

      Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June 1, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover a balance alleged to be due for goods sold and delivered to defendants’ firm. Defendants set up, as a counter-claim, damages for an alleged failure on the part of plaintiff to perform a contract for the sale and delivery of other goods.
    On August 15,1879, the firm of Holbrook, Merril & Stetson, composed of defendants, wrote plaintiff, asking for “ best prices on hollow-ware, delivered in Hew York.” On August 16, 1879, plaintiff answered, inclosing catalogue, and offering the goods at a discount from catalogue prices as follows: “ Sixty per cent, and ten per cent cash thirty days, but this price only to hold good till thirtieth September.”
    In September following, one Olute, an agent of the plaintiff, called upon defendants, and made some modification in the prices. On September twenty-fifth, sent an order with directions to “ make five or six shipments of above, to Hew York,” the first one, soon as convenient, the others to follow ten days, or two weeks apart, also giving directions as to the manner of putting up, and marking the goods; on September twenty-fifth, plaintiff wrote to defendants as follows : “ Our Mr. Olute has just returned and reported the conversation he had with you, in respect to your order of twenty-second instant, but he leaves us in doubt as to how it is to be invoiced, at sixty per cent and ten per cent cash, or sixty per cent and five per cent six months flat note.” On September twenty-seventh, defendants sent another order to be put up and shipped the same as directed in reference to the first order, adding this statement: “ The price Mr. Olute gave ns was sixty-five per cent six months, or three and one-half per cent cash.” On September twenty-ninth, plaintiff returned the order, writing as follows: “ You must be mistaken in discount Mr. Olute gave you. He positively asserts it was sixty per cent, and five per cent six months’ note. We cannot, therefore, ship any ware until you inform us whether we are to invoice at sixty per cent and ten per cent cash, or sixty per cent and five per cent six months’ note. We return order of twenty-seventh, as it is beyond our power to accept it.” Several other letters passed between the parties, each reiterating their views as to the offer made by Mr. Clute. On October third, defendants wrote: “ You can invoice the ware as you choose, either at the cash price, or the six months’ price.” Plaintiff filled the first order, and the action was to recover a balance unpaid thereon.

      Jesse Johnson for appellants.
    A quotation of prices, to hold good for a specified time, and orders given thereon, within that time, reasonable in amount, and before the quotation is' withdrawn, makes a contract binding on both parties. (Howard v. Daly, 61 N. Y. 362; Pierson v. Morch, 82 id. 503; Trivor v. Wood, 36 id. 307; C. & Gt. E. R.R. Co. v. Dane, 43 id. 240; Martier v. Frith, 6 Wend. 103; Vassar v. Camp, 11 N. Y. 441; Myers v. Smith, 48 Barb. 614.) The statement made by the letters of defendants that the order of the twenty-seventh exceeded plaintiff’s capacity is not available here. (Kellogg v. Norman, 74 N. Y. 596.) The construction of contracts, resting on disconnected facts or papers, is ordinarily for the jury and not for the court. (First Nat. Bank v. Dana, 79 N. Y. 108; Hawkins v. Pemberton, 51 id. 202; Jennings v. Sherwood, 8 Com. 127; Gardner v. Clark, 17 Barb. 538; Overton v. Tracy, 14 S. & R. 330; Watson v. Bland, 12 id. 136; Donaldson v. Richards, 2 Harr. [Penn.] 205; 1 Greenl. on Ev. 275; Duffee v. Mason, 8 Cow. 25; Payne v. T. & B. R. R. Co., 83 N. Y. 572; Wolfkill v. Sixth Ave. R. R. Co., 38 id. 49.) It was not necessary for the plaintiff to offer proof of the interest due. That could have been computed by the j nry or the counsel under the direction of the court. (Huntington v. Conkey, 33 Barb. 218.) The right to the affirmative upon an issue of fact is a legal right not resting in the discretion of the court. (Willard v. Thorn, 56 N. Y. 402; Elwell v. Chamberlain, 31 id. 611; Hoxie v. Green, 37 How. Pr. 97.)

      Elihu Root for respondent.
    The letter of August 16,1879, was merely a quotation of prices. It was not a proposition which, if accepted, would constitute a contract. (Holtz v. Schmidt, 59 N. Y. 253; Moulton v. Kirshaw, 59 Wis. 316.) Even if the letter of August sixteenth had contained all the elements essential to a proposition, the acceptance of which would constitute a contract, the transaction of September twenty-second, between the defendant and Mr. Clute, as shown in the correspondence, would have put an end to the proposition and excluded the possibility of its future acceptance. (Frith v. Lawrence, 1 Paige, 440.) That there was no evidence of any contract was matter for the determination of the court. (Eaton v. Smith, 20 Pick. 150; Gibbs v. Society, etc., 38 Conn. 153; Hutchinson v. Bower, 5 M. & W. 535.) If there was a contract, the difference between the contract price' and the market value of the goods on the thirtieth of September the measure of damages. (Masterdon v. Mayor, etc., 7 Hill, 62; Parsons v. Sutton, 66 N. Y. 92.)
   Büger, Ch. J.

It is quite obvious that no contract was ever made between the parties with respect to the sale of the goods described in the order of September twenty-seventh. Their minds never met as to some of the elements necessary to constitute a valid contract. The catalogue of prices, containing a statement of terms of sale, delivered to defendants by plaintiff in August, contained no proposition, as to the amount of goods which the plaintiff was willing to sell, on the terms stated, and until an offer is made by one party, complete and definite in all material terms, it is not possible for another, to make a valid contract by the mere acceptance of a proposition. In other words, so long as there remains any of the material conditions of a contract to be settled and agreed upon, no binding agreement exists.

In both of the orders in question certain stipulations were imposed by the buyers, outside of terms and prices, which required an assent on the part of the vendor to make a valid executory contract of sale. Thus, the vendees required the goods tobe put up in a particular manner, in bundles of uniform size, with only a certain number of articles in each bundle, and that the goods should be shipped to New York in five or six shipments, with ten days or two weeks to intervene between each shipment.

Even if the prices and terms of credit had been agreed upon and understood, the vendor might well have declined to accept the order sent, upon the ground that the period for the delivery of the goods was extended beyond the limit set by them in giving price, viz., the thirtieth of September, or that their proposition, as to prices, related only to orders to be accompanied by immediate delivery, and payments to correspond with such time. Upon an offer of immediate sale at specified terms of credit, the buyer cannot extend the time of payment by postponing the time of delivery, without the vendor’s consent. • .

But there is another objection to the alleged counter-claim. If the price list, delivered to the defendants by the plaintiff, could be regarded as containing a definite proposition to sell, which was open to the defendants to accept, previous to September thirtieth, and thus complete the execution of a contract, it was still, until accepted, a mere proposition, which it was competent for the plaintiff to withdraw at pleasure. The defendant did not, at any time prior to September thirtieth, order goods from plaintiff upon the terms stated in the plaintiff’s price list. They claim that some time during the month of September one Clute, the agent of plaintiff, gave them other terms, and that they, therefore, had a right to order on the modified terms. Assume this to be so, and also that an unconditional order by the defendants of goods, according to the terms as modified by Clute, would, make a valid contract, yet this would not render the order of the twenty-seventh good, for the reason that Clute’s modification was practically withdrawn by the plaintiff before its acceptance by defendants. The plaintiff in the letter of the twenty-fifth of September assumes that, after Clute’s modification, only two rates of discount were open to purchasers under the price list, and that defendants must conform to one or the other in making purchases. In reply to this letter, defendants make the large order of September twenty-seventh, which is in dispute, and require that it shall be accepted upon the terms which they had previously understood Clute to offer.

Even if we assume that Clute did make the modification as claimed by defendants, yet they were informed on the twenty-fifth, that neither Clute nor the plaintiff supposed that he had made any such modification, and the only terms upon which they were willing to make sales were re-stated to the defendants. Notwithstanding this information and the implied disavowal of the Clute terms, the defendants still insisted that the order of the twenty-seventh should be accepted and filled according to their understanding of the prior order. Certainly no irrevocable offer was made by plaintiff, and no contract can be predicated upon an offer which has been modified or withdrawn before an unconditional acceptance. If at ,the time an acceptance is made there is a dispute going on between the parties as :o the terms of the offer, can it be said that the minds of the parties have met when the acceptance of the disputed offer i'sffendered'? We think not.

We have thus concluded that no contract for the sale of the goods mentioned in the order of September twenty-seventh was-made by the receipt by the plaintiff of defendants’ letter of that date; and it is equally clear that none was made afterward.

Upon the twenty-ninth the plaintiff informed the defendants that it was beyond their power to accept that order, and they have never varied from this position. They had the right to reject the order for the reason stated, whatever may have been the truth as to the controversy, relating to terms and- prices ; and after September thirtieth, no offer remained ojaen for the defendants’ acceptance. The order of September twenty-second was made good by the delivery and acceptance of the goods, the plaintiff having severed the orders by distinct and repeated refusals to fill the one of the twenty-seventh.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    Henry Steers, Respondent, v. The City of Brooklyn, Appellant.
    When soil has been wrongfully deposited by human hands in the ocean or other public waters, in front of the uplands, so that the water-line is carried further out, the same rule applies as when such a deposit has been gradually made by natural causes, i. e. the accretion becomes the property of the owner of the upland, and his title still extends to the water-line.
    Plaintiff owned a lot in the city of B., bounded easterly by the water-line of the East river, and southerly by the central line of J. street, which street terminated at said water-line. A wharf had been built in front of his lot, extending to the center of said street, which plaintiff maintained, receiving wharfage from all persons using the same. The city authorities built a pier at the end of the street, shutting off from the water that portion of plaintiff’s wharf in front of his half of the street. In an action to recover damages, held, that the erection of the pier was a wrongful interference with plaintiff’s rights, and rendered the city liable ; that the pier was to be considered as an accretion, and so much of it as was in front of his half of the street became his; also, that plaintiff was entitled to recover, as damages, the wharfage received by the city from that portion of the pier in front of his land ; that defendant, having wrongfully collected the wharfage, was not entitled to any allowance for expenses incurred in collecting the same, or for the cost of building the wrongful structure, or keeping it in repair.
    (Argued December 3, 1885;
    decided December 22, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made at the February term, 1883, which affirmed a judgment in- favor of plaintiff, entered upon a decision of the court on trial at Special Term.
    This action was brought to recover damages alleged to have been sustained by reason of the unlawful erection, by defendant, of a pier in front of plaintiff’s premises in the city of Brooklyn, and also to compel defendant to surrender said pier to plaintiff, and account for wharfage received.
    The court found in substance that plaintiff was the owner of certain premises in the city of Brooklyn bounded southerly by the middle line of J., or Java street, and westerly by the East river; that he and his predecessors in title built a bulk-head along the water-front extending across the end of the northerly half of said street, filled in back of it, making a wharf, in accordance with the act (Chap. 302, Laws of 1849), and collected wharfage from vessels using the same. That in 1873 defendant built a pier across the end of said street in front of plaintiff’s wharf, thereby preventing him from collecting wharfage for the use of that portion of his wharf in front of his half of said street.
    The further material facts- are stated in the opinion.

      John A. Taylor for appellant.
    At the time, 1873, when Java street was extended by the building of the pier, which is the evil complained of, the only right of plaintiff in the premises was a franchise easement to go upon a bulk-head theretofore constructed by his grantors, and collect wharfage, dockage, and cranage therefrom. (Const. of 1846, art. 1, § 9; People, ex rel., v. Com'rs, 54 N. Y. 276.) The fee below original high-water mark, which was far east of plaintiff’s bulk-head, was, until divested by competent authority, in the people of the State of New York. (Gould v. H. R. R. R. Co., 6 N. Y. 522; Furnigan v. Meyer, 10 id. 568; People v. Tibbitts, 19 id. 523; People v. Canal Appraisers, 33 id. 461.) As Java street originally terminated at, the river, all the acts of either plaintiff or defendant which -redeemed the land from the water worked ipsofaoto a lawful extension of that street from which the right of access by the people and municipal control over it could never bo excluded save by legislative interference. (People v. lambier, 5 Denio, 9; 2 Dill, on Mun. Corp. [3d ed.], § 634; Laws of 1873, chap. 863, p. 1300.) As Java street was a public street, the defendant had the right to extend it by solid filling to the bulk-head line, and by pier to the pier line as established at that point in the river. (Backers v. Detroit, 26 Alb. L. J. 349; McMurray v. Mayor, etc., 54 Md. 103; Barney v. Keokuk, 94 U. S. 324; Packet Co. v. Catlettsburg, 105 id. 559; Wood v. Hoeft, 9 Hun, 182; 74 N. Y. 612; chap. 296, Laws of 1852, p. 439, § 6.) The permanent waterline designated on Exhibit “ B ” was the westerly boundary line of the seventeenth ward of the city of Brooklyn. (Laws of 1854, chap. 384, tit. 1, § 18, p. 835; Laws of 1873, chap. 863, tit. 1, § 18, p. 1294.) The conclusion of law, which finds that the plaintiff is entitled to the possession of the northerly half of said pier or wharf, and of all wharfage, dockage and cranage arising therefrom, is erroneous, since it awards to a private person possession of a public street or wharf in face of the control and custody of all such properties awarded by the charter to the city. (Laws of 1873, chap. 863, p. 1300.) The land within the street having been dedicated to the uses of the public, the plaintiff could recover at the most but nominal damages. (Matter of City of Brooklyn, 73 N. Y. 179.) The plaintiff could rightfully obtain only such judgment as is consistent with the case made by the complaint, and embraced within the issue. (Code of Civ. Pro., § 1207; Stevens v. Mayor, etc., 84 N. Y. 296.) The plaintiff was not entitled to the injunction asked in his prayer for relief ; it was neither alleged, proven nor found that the pier in question was a nuisance. (Code of Civ. Pro., § 1662.) The pier was not either as matter of fact or law a nuisance. (D. & H. C. Co. v. Lawrence, 2 Hun, 163.) The plaintiff’s remedy was by an action for damages, or of ejectment, if he has title to the land upon which the pier stands. (Taylor v. Brookman, 45 Barb. 106; C. & A. R. R. Co. v. Finch, 5 Sandf. 48.) The obstruction of the bulk-head by the pier was permanent and complete. The cause of action accrued, therefore, as respects the entire damages suffered immediately upon the building of the pier in 1873, more than six years prior to the commencement of the action. (Van Zandt v. Mayor, etc., 21 Sup. Ct. 375.) Plaintiff was not entitled to judgment as for moneys received to his use, because there is no proof that any moneys were received. (Salter v. Hall, 31 N. Y. 321.) The acts (Chap. 305, Laws of 1868, and chap. 518, Laws of 1880) do not give any additional rights to the plaintiff at the foot of or in Java street. (People v. Lambier, 5 Denio, 9; Wetmore v. Atlantic Co., 37 Barb 95.)

      James R. Steers, Jr.,

    for respondents. The act of April 10, 1849, is constitutional and valid. It grants a franchise, and such grants do not appropriate public property to private uses. (People v. Law, 34 Barb. 494; People v. Kerr, 37 id. 357; 6 N. Y. 647; Wetmore v. Atlantic W. L. Co., 37 Barb. 70; Wetmore v. Brooklyn Gas L. Co., 42 N. Y. 384; Cooley on Const. Lim. 163; 16 Pick. 96.) The plaintiff is entitled to all the wharfage accruing from the wharves, bulk-heads and piers built in front of his lands. (Pearsall v. Post, 20 Wend. 131; Verplanck v. Mayor, etc., 2 Edw. Ch. 220.) The conditions imposed on the owners of the land by the act of 1849 were in the nature of continuing offers, which, when accepted and complied with by them, became an executed contract, and the title and rights of the plaintiffs became vested and fixed. (Langdon v. Mayor, etc., 93 N. Y. 129.) This right to receive wharfage is a franchise, and can only be exercised under a grant from the sovereign power or by prescription. (Wiswall v. Wall, 3 Paige’s Ch. 318; Walsh v. N. Y. Floating D. D. Co., 77 N. Y. 448; People v. Utica Ins. Co., 15 Johns. 358.) The franchise thus obtained by the plaintiff is inviolable. (Benson v. Mayor, etc., 10 Barb. 240.) Upon the facts herein established and upon the legal and equitable principles applicable thereto, the plaintiff is entitled to a decree of the court, requiring the defendant to remove the structure it has erected at the foot of Java street. (Penniman v. Balance Dock Co., 13 How. Pr. 40.) Under the law of accretion the pier has become a part of the upland and bulk-head belonging to the plaintiff, and the title to it is now in the plaintiff subject to the right of way of the public over it as a street. (Wetmore v. Atlantic W. L. Co., 37 Barb. 70; 42 N. Y. 384.) Although this action is an equitable one, the court may not only grant equitable remedies, but the legal rights of the owners of the land may therein be established, (Broistedt v. S. S. R. R. Co., 55 N. Y. 220.) This action, being to enforce equitable rights, is not barred by the statute of limitations under ten years. (Code of Civ. Pro., § 388.) The power conferred on the city by its charter does not allow it, by mere extension of its. streets, to deprive the owners of the upland and water-front of the enjoyment and improvement of their own premises. (City of Brooklyn v. N. Y. Ferry Co., 87 N. Y. 204.) The title to the structure, having been found to be in plaintiff, the rights of possession and wharfage necessarily follow. (2 Johns. 363.) The seventh conclusion of law, that the defendant must account to the plaintiff for the wharfage it has collected, is simply the exercise of one of the well-established powers of a court of equity. (Code of Civ. Pro., § 1015; Stanley v. White, 14 East, 332; Hager v. Hager, 38 Barb. 92; 2 Denio, 91; Tuttle v. Mayo, 7 Johns. 132; Dough. 137.) Privity of contract is not essential. (1 Abb. Ct. App. Dec. 333; 29 Wis. 611; 111 Mass. 474; 30 Barb. 238 ; Code of Civ. Pro., §§ 1496, 1497; Lisle v. Hunt, 21 N. Y. Weekly Dig. 482.) The acts of the defendant, in intruding upon the franchise of the plaintiff, and in collecting the fees for wharfage, as they successively arose, were a continuing trespass in the nature of a nuisance, which might become the foundar tian of adverse rights, and the occasion of a multiplicity of suits to recover such fees. They were properly restrained by injunction. (6 Paige, 83; 16 N. Y. 97; 13 Hun, 285; 40 N. Y. 191; 55 id. 220.) An acknowledgment of having received the money, made by the defendant in any form, is binding upon it. (Thalheimer v. Brinckerhoff, 6 Cow. 90.) As the defendant could not sustain an action against the plaintiff upon its claim for a counter equity, the proof to support such claim was properly rejected. (Canada v. Stiger, 55 N. Y. 452; Koestenbader v. Pierce, 41 Iowa, 204; Jebson v. E. & W. T. D. Co., L. R., 6 C. P. 300.) Even in ejectment a defendant cannot off-set his improvements, unless he entered upon the lands, and made his erections under color of title, which the defendant has not pretended to set up in this case. (Code of Civ. Pro., § 1531.) It was proper for the referee to take and state the accounts down to the time of the hearing. (Darling v. Brewster, 55 N. Y. 669.)
   Earl, J.

Under his paper title and the acts of the legislature (Chap. 302, Laws of 1849, chap. 305, Laws of 1868, and chap. 518, Laws of 1880), there can be no doubt that the plaintiff was vested with the fee of the land to the cenier of Java street, and extending to the water-line of the East river and that he had a right tó maintain his wharf in front of his land and his one-half of the street and take and receive wharfage from all persons using the same. His fee in the street, however, was subject to the public easement for travel over the street to the water-line, and is still so subject. When, therefore, the defendant built a pier at the end of Java street thus shutting off the plaintiff’s wharf across one-half of the street from the water, it interfered with his rights and became liable to him for damages. That structure was a wrongful interference with the plaintiff’s franchise, secured to him by the acts of the legislature referred to. The plaintiff was, therefore, entitled to the judgment which was ordered in his favor.

The court below was right in holding that the pier wrongfully built by the defendant across the end of Java street must be treated as an accretion to the upland or mainland, and thus so much of it as was in front of plaintiff’s half of Java street and in front of his wharf became his (subject, however, to the public easement for travel upon Java street), as it was attached to his soil and was between his land and the water-line. When soil is by natural .causes gradually deposited in the water opposite upland, and thus the water-line is carried further out into the ocean or othqr public water, it becomes attached to the upland, and, the title of the upland owner is still extended to the water-line, and the accretion thus becomes his property. ¡Natural justice requires that such accretion should belong to the upland owner so that he will not be shut off from the water, and thus converted into an inland rather than a littoral owner. The same rule should be applied for the same reason where the soil in front' of the upland has been wrongfully placed there by human hands. The wrong-doer should gain nothing by his wrong, and justice cannot be done to the upland owner except by awarding to him, as against the wrong-doer, the accretion attached to his soil as an extension thereof. (Ledyard v. Ten Eyck, 36 Barb. 102, 125; Langdon v. Mayor, etc., 93 N. Y. 129; Mulry v. Norton, 100 id. 424; Gould on Waters, §§ 123, 124, 128, 148, 158; Angell on Tide Waters, 249.)

The interlocutory judgment ordered a reference to take an account between the parties for all wharfage received by the defendant from the northerly half of the pier or wharf, since the 21st day of December, 1875, and it was provided that if the defendant did not account for such wharfage it must pay the plaintiff a sum equal to the reasonable wharfage during the time mentioned. In pursuance of the judgment a referee was appointed, and upon the hearing before him the counsel for the defendant, upon being called upon by plaintiff to present an account of the wharfage received by it, stated that he had no such account to render. Plaintiff’s counsel then offering to prove what was the reasonable wharfage, the counsel for the defendant, while objecting to the competency of the fact to bind the defendant, admitted that such reasonable wharfage during the period in question amounted to §1,250, to-wit: at the rate of $208.35 a year, and the referee ruling that such fact was competent, the defendant excepted. Counsel for the defendant further admitted, under the same objection, and also upon the ground of irrelevancy, that such reasonable wharfage from the twenty-first day of December to the date of the hearing was worth $156, and the- referee ruling such latter fact competent and relevant, the defendant excepted. Counsel for the defendant then offered to prove (1) that such wharfage was more than the plaintiff would or could have received from the bulk-head had not the pier in question been built; (2) the reasonable cost of building the pier in question ; (3) the cost of the reasonable and necessary repairs thereto during the period in question; (4) the reasonable value or expense of collecting such wharfage. Counsel for the plaintiff objected to each of these facts as incompetent and irrelevant, and the objections were sustained and defendant excepted. These exceptions point out no error. It was substantially conceded that the defendant had received the wharfage from so much of the pier as was in front of the northeriy half of Java street, and while it could not or would not present any account of it, it admitted the amount of the reasonable wharfage during the period named. The money thus collected and received by it rightfully belonged to the plaintiff, and it was not proper to indulge in mere speculation whether the plaintiff would have collected so much from his bulk-head had the pier not been built, nor was it proper to prove the reasonable cost of building the wrongful structure, or of keeping it in repair, and the defendant having wrongfully collected the wharfage it could not be allowed any expense for collecting the same. Plaintiff had the right to collect his wharfage in his own way upon payment of such expenses as he should think proper to incur.

On the whole we think the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Roger, Oh. J.

text:
    John W. Smith, Appellant, v. The Brooklyn Savings Bank, Respondent.
    Possession by a stranger of the pass-book .of a depositor in a savings bank constitutes no evidence of a right to draw money thereon; to make payments to one having no other evidence of authority than possession of the book a protection to the bank, it is necessary for it to show some special contract with the depositor authorizing such a mode of payment.
    In a pass-book issued by defendant to a depositor was a printed by-law, a portion of which is as follows: “ All payments made by the bank upon the presentation of the pass-book, and duly entered therein will be regarded as binding upon the depositor; money may also be drawn upon the written order of the depositor or his attorney when accompanied by the pass-book.” Held, that the by-law contemplated but two modes of payment, one to the depositor personally, the other upon his written order, both requiring the presentation of the pass-book as the condition thereof; and that it did not authorize or protect the bank’in a payment to a stranger whose only evidence of authority to receive it was the possession of the pass-book.

      Behoenwald v. Metropolitan Bank (57 N. Y. 418), distinguished.

      Also held, that it was error for the trial court to exclude evidence tending to show want of care and prudence on the part of the bank in making such payments.
    (Argued December 3, 1885;
    decided December 22, 1885.)
    Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made September 12, 1883, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial.
    This action was brought to recover the amount of various deposits made by plaintiff in defendant’s bank, and entered in a pass-book delivered to him.
    The defense was that the moneys deposited had been paid out by the bank on presentation of the pass-book to a third person whom the proof showed was a brother of plaintiff, who had no authority from plaintiff to draw the money, and who had unlawfully possessed himself of the pass-book.
    Further material facts are stated in the opinion

      James Troy for appellant.
    Payment by a savings bank, to a person presenting a pass-book, is good, if the officer have no notice of fraud, and in making such payment, exercise reasonable care and diligence. (Hayden v. Brooklyn Savings Bk., 15 Abb. [N. S.] 297; Appleby v. Erie Co. S. Bk., 62 N. Y. 12; Allen v. Williamsburgh S. Bk., 69 id. 317.) Under the by-laws in evidence, the defendant had no right to pay over the money to any person, other than the depositor, without an order in writing. (Walsh v. German Am. Bk., 73 N. Y. 424; Frank v. Chemical Bk., 37 N. Y. Super. Ct, [J. & S.] 26; 13 Weekly Dig. 374.)

      Wm. 8. Oogswell for respondent.
    In the absence of any rules assented to by its customers, a savings bank is to be governed by the same legal principles which apply to other moneyed institutions. When it has prescribed rules, and its depositor has assented to them, they are the agreement, and each party must keep it, to preserve his rights against the other. (Allen v. Williamsburgh Sav. Bk., 69 N. Y. 321; Boone v. Citizens’ Sav. Bk.,
      84 id. 87.) The respondent had a right to make the payments on the presentation of the pass-book, unless there was some suspicious circumstance, that notified it that the person presenting it was not the depositor. (Shoenwald v. Met. Sav. Bk., 57 N. Y. 418; Boone v. Citizens’ Sav. Bk., 84 id. 88.) In paying money upon the presentation of a deposit book, reasonable care and diligence do not necessarily require the disbursing officer of a savings bank to demand strict proof of the identity of a depositor. (56 Me. 507; 27 Conn. 229; 46 N. H. 78.) There is no proof of want of care in making the payments, and the burden to show this is on the appellant. (Israel v. Bowery Sav. Bk., 9 Daly, 507.)
   Roger, Oh. J.

The defendant, a savings bank, seeks to justify the payment by it of a depositor’s money, to a stranger upon the ground that such payments were made to a person having possession of the depositor’s pass-book. Such a passbook is not negotiable paper, and its possession constitutes in itself no evidence of a right to draw money thereon. It merely imports a liability of the bank to the depositor for the moneys deposited, and an agreement to repay them at such time and in such manner as he shall direct. This contract is implied from the nature and objects of the transaction occurring between the parties. (Crawford v. West Side Bank, 100 N. Y. 51.) The depositor may by special contract authorize payments to be made in some other manner than by his directions, but, in order to make such payments a protection to the bank, it is necessary for it to show some special agreement with the customer, authorizing such a mode of payment.

The defendant in this case claims to have had such authority by force of a by-law printed in the pass-book, delivered to the plaintiff at the time of making his firstjdeposit. Assuming, for the purpose of the argument, that the mere acceptance by the depositor of a pass-book containing by-laws regulating the manner of making deposits, and payments, constitutes a contract between the parties, we will inquire into the meaning and intent of the by-law referred to. It reads as follows : “ All deposits and drafts must be entered in the pass-book at the time of the transaction, and all payments made by the bank, upon the presentation of the pass-book, and duly entered therein, will be regarded as binding upon the depositor. Money may also be drawn upon the written order of the depositor or his attorney when accompanied by the pass-book. No money shall be received, nor shall any money be paid out except by the teller at the bank in the presence of an officer or trustee. No money shall be withdrawn as a matter of right without three months’ previous notice.” We do not think this by-law supports the contention of the defendant.

It is argued by it that the phrase all payments,” as used therein, means any sum of money, delivered by it, to any person who may for the time being, have in his possession the pass-book, and it is only by assuming that such a delivery of money, is a payment upon that account, that any color of support is afforded to the argument. This may have been the understanding and intention of the bank in framing the by-law, but in order to make that, understanding obligatory upon the customer, it was also necessary that he should have a similar understanding, or that the law should have been expressed in language incapable of any other fair construction. We do not think that the word payments,” as used in it, can, according to the legal or common acceptation or meaning of the word, be construed to mean any sums which the bank might choose to disburse, regardless of the person to whom they were made. Payment by a debtor can be legally made only to the creditor or his authorized representative, and in order to constitute any other transaction a payment, it is essential to its validity, that it should be authorized by the person entitled to demand it.

The defendants have not here shown any such authority. An agreement that payments made in a particular manner shall be binding and conclusive upon the depositor does not tend to authorize a payment made to a stranger, or give any other signification to the word “ payment ” than it usually bears. The effect which, it is argued, should be given to the language used can be indulged in only by force of a contract with the depositor; but it is here attempted to imply the contract from the mere use of the word “ payments,” etc. This is reasoning in a circle, and proves nothing.

Further examination of the provisions of the law confirms our views. It is quite improbable that so important a power should have been left to be inferred from loose and doubtful phraseology, if it had been originally intended to be conferred by the parties, and ■ the plaintiff is entitled in this case to that construction of the by-law which makes it conform to the popular and ordinary signification of its language.

The by-law seems to contemplate" but two modes of payment, both of which require the presentation of the pass-book as the condition thereof, one apparently authorizing a payment to the depositor personally, and the other, one which may be made in his absence. The one provides for the conclusive effect of payments made, and duly entered in the pass-book, and the other, for payments made in his absence to a third person, having possession of the pass-book. This provision requires the depositor’s written order to accompany the pass-book.

The fair implication from this provision is, that no other pay-ments to strangers are contemplated or authorized. Mopressio unius est exdusio alterius. Any other construction of the bylaw would render the clause referred to unmeaning and inoperative. If the bank were authorized to make payments to a stranger, having possession of the pass-book alone, the provision authorizing the bank also to make such payments to a stranger, not only having possession of the pass-book, but also of the depositor’s written order, would be useless and unmeaning.

It is the duty of a court to give effect to all of the provisions and language used in framing a law, if it is susceptible of such a construction, and they are precluded from giving it such an effect as will render any of its clauses inoperative or ineffectual. Such a construction as we have indicated is the only one which gives a legitimate operation to the clause referring to a written order.

This case is not affected'- by the decisions in Schoenwald v. Metropolitan Bank (57 N. Y. 418) and similar cases, where the language of the contract was substantially different. There the language of the by-law plainly implied and provided for payment, made to other persons than the depositor, and gave a signification to the word “ payments ” which included strangers having possession of the pass-book.

The conclusion reached by us, as to the authority conferred by this by-law upon the bank in making payments, renders it unnecessary to refer to the other questions in the case. It may not, however, be inappropriate to say that we are also of the opinion that, within the cases of Boone v. Citizens' Sovings Bank (84 N. Y. 88) and Allen v. Williamsburgh Savings Bank (69 id. 321), the court below erred in refusing to submit the question to the jury as to whether, upon the evidence in the case, the defendant exercised reasonable care and prudence in making the alleged payments.

It follows of course from this, that the trial court also erred in excluding evidence tending to show the want of care and prudence on the part of the bank in disbursing the plaintiff’s funds.

The judgments of the General an'd Trial Terms, should be reversed, and a new trial ordered, with costs to abide the result.

All concur.

Judgment reversed.