author: PutNAM, P. J.:

text:
    Howe’s Cave Lime and Cement Company, Respondent, v. Howe’s Cave Association, Appellant.

      Entry on another’s land through a tunnel — action therefor relates to real property — presumption of intent in malting such entry — effect of the title in the construction of statutes — survey under § 1682 of the Oode of Civil Procedure.

    An action brought to recover damages for an alleged unlawful entry on the plaintiff’s premises by means of a tunnel sunk into the ground on an adjoining lot, and for severing and removing valuable material from the soil thereof beneath the surface of the plaintiff’s land, relates to real property, and the provisions of section 1682 of the Code of Civil Procedure are applicable thereto.
    The language of such section is applicable to all actions relating to real property, and the provisions of such section, being unambiguous, are not limited by the title of article 9 of title 1 of chapter 14 of part 2 of the Code of Civil Procedure.
    The title of a public act is no part thereof, and while resort may be had to the title of the act for aid whore the statute itself is doubtful or ambiguous, it is, otherwise where the language is apt and the construction plain.
    Under section 1682 of the Code of Civil Procedure, authorizing a survey of the property in the possession of a party to an action and an entry upon his premises, the court may grant the applicant leave to survey any of the property in possession of the opposite party, and in a proper case may direct a survey of a defendant’s premises through a tunnel under the surface, as well as a survey upon the surface of the land.
    In the absence of any proof of a wrongful or criminal intent, it will he presumed that the action of a person in sinking a tunnel on his lands, and thereafter removing valuable material below the surface of the land of an adjoining owner, was done by accident, or mistake, and without any criminal intent.
    Appeal by the defendant, Howe’s Gave Association, from an order of the Supreme Court, made at the Schoharie Special Term on the 23d day of February, 1895, and entered in the office of the clerk of the county of Schoharie, adjudging that the plaintiff, its agents, attorneys and servants may enter unto and upon the lands and premises of the defendant, and within a tunnel thereon, for the purpose of making a proper and accurate measurement and survey, to establish the boundaries thereof between the parties, to ascertain, if any, what quantity of cement stone has been removed by the defendant from the lands of the plaintiff, and to make other necessary measurements.

      F. It. Gilbert, for the appellant.

      O. B. Mm/ham, for the respondent.
   PutNAM, P. J.:

The parties are owners of adjoining lots of land at Howe’s Gave, N. Y., and engaged in the business of manufacturing lime, cement and building stone. Plaintiff claimed that defendant had opened a tunnel on its land about twenty rods distant from the premises of the former, and through such tunnel reached the land of said company under the surface, had trespassed thereon, and taken and removed therefrom a large quantity of valuable material. The affidavit of the manager of the plaintiff, used on the motion, states: “ That the deponent gained admission to said tunnel and made some crude measurements therein alone, and that in his opinion, based on the said crude measurements so made by him, the defendant has wrongfully and unlawfully taken out of said tunnel and used of the cement stone of this plaintiff covering a space of about three rods wide and forty rods in length, and of the height of about seven feet; that the length of said tunnel, before it reaches the plaintiff’s lands, is about twenty rods, and that the actual amount of stone removed from plaintiff’s lands cannot be anything like accurately ascertained without a survey and actual accurate measurement and computation made by a competent civil engineer and surveyor; that the only way such survey and measurement can be made is by entering said tunnel for said purpose, and that in order to make such survey and measurements competent engineers and surveyors and assistants will have to pass through defendant’s tunnel a distance of about twenty rods before reaching the lands of plaintiff, and that measurements of the length of said tunnel on defendant’s lands and the courses and distances will have to be taken by the said engineer or surveyor, and also measurements, distances and courses on the surface of defendant’s lairds will have to be made from the mouth of the said tunnel to the lands of the plaintiff.”

The plaintiff commenced this action to recover damages for the said alleged trespass and injury to its premises, and obtained an order that plaintiff might enter upon defendant’s premises to make a survey within the said tunnel and on the surface of defendant’s land, under the provisions of section 1682 of the Code of Civil Procedure, which reads as follows : “ If the court, in which an action relating to real property is ¡rending, is satisfied that a survey of cmy of the property m possession of either party, or of a boundary line between the parties, or between the property of either of them and of another person, is necessary or expedient to enable either party to prepare a pleading, or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in ¡possession, make an order granting to the applicant leave to enter upon that party’s property to make such a survey.”

Defendant appeals from the or.der so granted, claiming that the provisions of section 1682 do not apply to this action.

It clearly appears from the moving affidavits that the action which the plaintiff has commenced relates to real property. On the trial plaintiff will be compelled to show its title to the premises in question, and also that defendant has trespassed thereon and removed stone and material therefrom. An action of trespass against a defendant for entering on land of another and cutting down and carrying away vrood and timber is placed, in the Code of Civil Procedure, among the actions relating to real estate. So this suit to-recover for an alleged unlawful entry on plaintiff’s premises, and for severing and removing valuable material from tire soil, must be deemed to relate to real property.

But section 1682 {supra) is contained in article 9, title 1, chapter 14, part 2, Code of Civil Procedure, and the title of article 9 reads as follows: Provisions applicable to two or more of the actions specified in this title.” The learned counsel for the appellant urges that such an action as the moving papers show that plaintiff has commenced is not specified in title 1 {supra), and, hence, the provisions of section 1652 do not apply; that the provisions of section 1682 are only applicable to an action specifically mentioned in title 1, as actions of ejectment, partition, dower or foreclosure; • actions to compel the determination of claims to real property; actions for waste and nuisance; that the 8th article of title 1, entitled “ other actions relating to real property,” does not mention such an action as the one under consideration, although it does refer to actions of trespass for cutting down and carrying away wood or timber. The .learned counsel, therefore, insists that although section 1682 applies in the case of an action for trespass in entering upon land and cutting down wood or timber, it will not so apply where the action is brought for trespass in entering upon land and removing stone and material therefrom.

As we have seen, the suit clearly relates to real property. We think the language of section 1682 should be deemed applicable to all such actions. There is no ambiguity in the provisions of the section. By its terms it applies generally to- an action relating to real property. It has been held that the title- of a public act is no-part of it. (Jones v. Sheldon, 50 N. Y. 477.)

“ We may resort to the title of an act for aid when the statute itself is doubtful or ambiguous, but not where the language is apt and the construction plain.” (In the Matter of Village of Middletown, 82 N. Y. 196-199; People v. O’Neil, 54 Hun, 610, 611.)

The provisions of section 1682 being not ambiguous and applying generally to an action relating to real estate,, we do not think that such provisions are limited hy the title of article 9. This view as to the construction of section 1682 is the-more-reasonable one. Eor instance, under section 1665, article 8 (supra), one seized of an estate in reversion or remainder could commence sucli an action as plaintiff has begun, for an injury to his inheritance, and it cannot be -doubted could obtain an order under section 1682, while the life tenant, if the position of counsel for appellant is well taken, commencing an action for a similar injury to his estate, could not obtain relief under such section. So, in an action for a trespass and injury to land atom the siorface by cutting down trees, the provisions of section 1682 clearly apply, but, according to the contention of the defendant, in cases of actions for trespass and injury to a freehold by removing stone and material londer the sv/rfaoe, the statute does not apply. There seems to be no good reason why a party should not have the benefit of the section in question in the one case as well ,as the other.

It will be observed that the provisions of the section immediately preceding section 1682 (supra) in terms limit the application of the provisions therein contained to actions specified in title 1 (supra), while section 1682 is made applicable generally to an action relating to real property. As there is no ambiguity in the section, and it appears applicable to all actions, we think it is not limited by the title of article 9. (See People v. O'Neil, 54 Hun, 610; The Mayor, etc., v. Eisler, 2 Browne’s N. Y. Civ. Proc. Rep. 125.)

It is also'daimed that the survey which the court by section 1682 is authorized to allow is a surface survey, and that an entry into or survey of an erection or inclosure on the premises of a party cannot be allowed. But the section authorizes a survey of property in the possession of a party and an entry upon his premises. The ■court may grant the applicant leave to survey am/y of the property in possession of the opposite party! “ Survey ” means “ to inspect or examine with reference to situation, condition and value; ■* * * go determine the boundaries, extent, position,” etc. (Century Dictionary.) The language of the statute seems to authorize the order in question. In a proper case we can see no good reason why the court, under section 1682, may not direct a survey of a defendant’s premises through a tunnel under the surface as well as upon the surface.

In this case the moving affidavits, which were not contradicted, showed a state of facts which rendered the order granted by the Special Term proper. It appeared that defendant had entered upon plaintiff’s property by means of a tunnel started twenty rods from its line and taken rock therefrom through said tunnel. It was shown to be impossible for plaintiff to draw its complaint or prepare for trial without an opportunity to survey the tunnel and correctly measure its courses and length.

The moving affidavits made it appear that a survey of the property in the possession of the defendant was necessary and expedient, viz.: Of the tunnel through which it had entered on plaintiff’s property and removed material therefrom. It is only by means of such a survey that the plaintiff will be able to properly prepare for trial. While the affidavits read on the motion show a trespass, they also show that plaintiff was ignorant of the amount of material taken by defendant from its premises, and the plaintiff can only ascertain such amount by being allowed to survey the tunnel. The order appealed from seems to be authorized by section 1682, and to be just- and reasonable. The moving party established the commission of a wrongful act on the part of the defendant, and unless plaintiff can make the survey applied for it is practically remediless, being unable to state or show the amount of its damage.

This case is not similar to that of Hayden v. Van Cortlandt (84 Hun, 150). Here the manager of the plaintiff has entered the tunnel and made crude measurements therein, and on such measurements reached the conclusion that defendant had trespassed upon and removed material from plaintiff’s lands. It is true he is hot certain, but in the absence of any contradictory deposition his affidavit is sufficient to sustain the order.

It is suggested by the appellant that plaintiff is securing by the order appealed from the aid of the court to compel the defendant .to furnish proof that may be used against its officers and agents in criminal proceedings, and upon the trial of indictments for larceny. It is- sufficient to say in answer to this position that the papers in the case did not show the fact that the alleged trespass of defendant upon plaintiff’s premises and the removal of .material therefrom was an intentional or criminal act. In the absence of any evidence in that regard the action of defendant of which the plaintiff complains will be presumed to have been done by accident or mistake, with out any criminal intent.

Again, the order does not compel defendant to furnish evidence to the plaintiff. It merely directs the defendant to allow plaintiff to go upon defendant’s premises for the purpose of making a survey. We think the constitutional provisions and authorities cited by appellant to establish the fact that the order in question is in violation of the Constitution of the State and of the United States do not apply. . .

The order should be affirmed, with ten dollars costs and disbursements.

HeeRICK, J., concurred; Mayham, P. J., not acting.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: PüTNAM, J. :

license: Public Domain

text:
    George E. Beardsley, Appellant, v. Willis G. Pope, Respondent.

      Justice’s Court — authority of attorneys therein — waiver by the attorneys of statutory provisions.

    Under the provisions of section 2886 of the Code of Civil Procedure a party may prosecute or defend an action in a Justice’s Court hy an attorney, and under the provisions of section 2890 thereof the authority of the attorney may he shown hy his oral testimony on the trial.
    Where the authority of an attorney is properly proved hy his own oath in an action in a Justice’s Court, such attorney must he deemed to have power to manage and control the conduct of the suit. He may consent to an adjournment for the purpose of summing up the case, and he may also stipulate to give the justice additional time in which to render his decision, provided ths stipulation is executed on the final submission of the case to the justice.
    The authority of the attorney to appear for his client and to act for him continues until the final submission of the case, and his client is hound hy his acts, admissions and stipulations made in the conduct of the case prior thereto.
    Although it is provided hy section 8015 of the Code of Civil Procedure that a justice of the peace must render judgment and enter it in his docket hook within four days after the submission of the cause to him, such provision of the statute may he waived.
    Appeal by the plaintiff, George E. Beardsley, from an order of the county judge of Essex county, entered in the office of the clerk of the county of Essex on the' 30th day of January, 1895, vacating and setting aside the docket of the judgment entered in the above-entitled action and the execution issued thereon.

      H. JE. Barna/rd, for tbe appellant.

      A. W. Boynton, for tlie respondent.
   PüTNAM, J. :

There is no substantial conflict, as to the facts. The action was commenced before a justice of the peace of Clinton county by the issuance of a summons returnable May 26, 1894. At that time Mr. Boynton appeared for the defendant as his attorney, and made the usual oath as to his authority. Issue was joined by a written complaint and answer, and the cause adjourned to June second, at which time the trial was had, the defendant being sworn as a witness in his own behalf. An adjournment was then taken to July 2, 1894, when the parties appeared by their attorneys and summed up and submitted the case. At this time the attorneys of the respective parties, on the minutes of the justice, entered into the following-written stipulation:

“ Thirty days additional time is hereby given the justice to decide this ease in, and to render judgment herein.
“ Plattsbueg-ii, N. Y., July 2nd, 1894.
“ H. E. BARNARD, Atty. for Plff.
“A. W. BOYNTON, Atty. for Deft?

The justice, on the 4th day of August, 1894, rendered judgment in favor of the plaintiff for twenty-five dollars and twelve cents, damages and costs. This judgment was afterwards docketed in the Clinton county clerk’s office, and a transcript thereof filed and the judgment docketed in Essex county, and an execution issued thereon in the latter county. The county judge of Essex county, on motion of defendant, afterwards set aside the docket of the judgment and the execution issued thereon, upon the ground that the attorney for the defendant had no authority to enter into the stipulation granting the justice additional time in which to render his judgment, and hence that the judgment in fact entered thirty days after the submission of the cause was absolutely void. On the motion before the county judge both the defendant and his attorney, Mr. Boynton, in their affidavits, state that the latter entered into the stipulation without the knowledge of or authority from the defendant.

Under the provisions oi the Code of Civil Procedure a party may prosecute or defend an action in a Justice’s Court by attorney. (§ 2886.) The authority of the attorney may be shown by his oral testimony on the trial. (§ 2890; The Syracuse Moulding Co. v. Squires, 61 Hun, 48; S. C., 39 N. Y. St. Repr. 824.)

Hence, in the case under consideration, Mr. Boynton’s authority to appear as attorney for the defendant, was properly proven by his own oath. He was, therefore, the attorney of the defendant in the action, with the usual powers of an attorney, and must be deemed to have had power to manage and control the conduct of the suit. (See Village of Suspension Bridge v. Bedford, 10 N. Y. St. Repr. 850.) As such attorney he could answer for the defendant, as he did. He could consent to the adjournment to July second for the purpose of summing up the case, and, in our opinion, he could also stipulate to give the justice additional time in which to render his decision. The stipulation in question was executed on the final submission of the case to the justice. Until after such submission the authority of Mr. Boynton to appear for the defendant and to act for him in the action continued. lie was, it is true, the agent of the defendant, but as attorney he was an agent with full power to control the conduct of the suit, and as such had power to enter into the stipulation in question on the final submission of the cause. This case is not like that of Flynn v. Hancock (46 Hun, 368) where an oral stipulation was entered into by the attorneys of the parties out of the office of the justice — not in the presence of each other — — and after the final submission of the cause. The stipulation in this case was made by the attorneys on the trial — on the final submission of the cause — on the minutes of the justice and' when Mr. Boynton was acting as attorney for the defendant, and had a right to so act under his employment as attorney.

The affidavits made by Mr. Boynton and the defendant, that the stipulation in question was made by the former without the knowledge of or authority from the latter, cannot be deemed as intended to contradict the oral testimony of Mr. Boynton, made at the time of the joinder of issue, as to his authority to appear for the defendant as attorney in the action, and must be understood to mean that Mr. Boynton had no special authority from the defendant to give the justice additional time in which to render liis decision, and as expressing the opinion of Mr. Boynton and his client that the general power of the former as attorney did not confer on him authority to enter into the stipulation.

We think, however, that as attorney in the action before the justice until after the final submission of the case, Mr. Boynton had ample power to act for his client. He could do whatever his client could have done, if present, in the conduct of the case. lie could answer for him, adjourn the trial from time to time, enter into stipulations, and consent to extend or adjourn the time in which the justice should render his decision.

Section 2886 of the Civil Code, which provides that a party to an action before a justice of the peace may appear and prosecute or defend by attorney, we think, confers upon a duly authorized attorney in a Justice’s Court full power and authority to represent his client during the trial, and until after the final submission of the cause. His authority undoubtedly terminates at that time, but until then we see no reason to doubt that his client is bound by his acts, admissions and stipulations made in the conduct of the cause.

Although the statute provides that a justice of the, peace must render judgment and enter it in his docket book within four days after the submission of a cause to him (Code Civ. Proc. § 3015), it is held that this provision of the statute may be waived. (Barnes v. Badger, 41 Barb. 98; Keating v. Serrell, 5 Daly, 278; In the Matter of the New York El. R. Co., 7 Hun, 239-241.)

A party may waive a constitutional provision made for his benefit. (Embury v. Conner, 3 N. Y. 511; Fiero v. Reynolds, 20 Barb. 275.)

We think the parties in this case, by their attorneys, duly extended the time in which the justice should render his decision, thus waiving the statutory requirement that the judgment should be entered within four days after the submission of the case, and hence that the judgment rendered is valid.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Mayhah, P. J., and HbeRXCK, J., concurred.

Order reversed, with costs and disbursements, and motion denied, with ten dollars costs.


author: Putnam, P. J.:

text:
    The Kingston National Bank, Respondent, v. Augustus H. Van Buren, as Administrator, etc., of Nicholas E. Brodhead, Deceased, Appellant.

      Misappropriation of moneys — burden of proof.

    In an action brought to recover for money misappropriated, it is necessary for the party alleging the misappropriation to produce evidence to overcome the presumption of innocence which exists in favor of the defendant.
    Appeal by the defendant, Augustus II. Yan Burén, as administrator, etc., of Nicholas E. Brodliead, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Ulster on the 21st day of March, 1895, upon the report of a referee.

      John J. linson, for the appellant.

      V. B. Van Wagonen, for the respondent.
   Putnam, P. J.:

The plaintiff presented to defendant, as administrator, a claim against the estate of Nicholas E. Brodhead for $625 and interest, for money alleged to have been collected by deceased of the firm of George B. Merritt t% Co. for the plaintiff.

Defendant, doubting the justice of said demand, the matter in controversy was referred pursuant to the statute. The referee, after hearing the proofs and allegations of the parties, made findings in favor of the plaintiff and judgment was duly entered thereon.

Defendant now appeals on the ground that the judgment is unsupported by the evidence.

Ye have, therefore, carefully read and considered the testimony in the case. "While it is possible that the referee could have properly reached a different conclusion than the one arrived at, on the question of fact submitted to him, we are rof opinion that on the evidence this court cannot properly reverse the judgment on the facts.

It appeared upon the trial that the deceased, as an officer of plaintiff collected of G. B. Merritt & Go. by their check drawn on the plaintiff, $625 on June 8, 1891; that the money was drawn from the bank on said check; that for a time the $625 so drawn was pinned fast to a slip of paper and laid aside in the vault; that it lay there for some time; that afterwards said money had been taken from the vault. It also appeared that Hr. Brodhead left the bank as cashier on July 31, 1891. After that the witness Hume, the then cashier, testified that he had a conversation with Brodhead, and asked him what had become of the $625 which was to be applied on G. B. Merritt & Co.’s indebtedness. Brodhead replied, I am holding it for the present.” Hume testified further that “ Neither the $625 nor any part thereof has been paid to the bank to be applied on the indebtedness of G. B. Merritt & Co.” The evidence of the witness Hume was not contradicted. No attack was made on his character. He was an officer of the plaintiff inquiring of an ex-officer as to $625 collected by the latter. Brod-head then told him, after he had left the employ of the plaintiff, that he had the $625 in his possession, and the witness further testified that neither the money nor any part thereof had ever been paid into the bank.

This testimony of an uuimpeached and uncontradicted witness it seems to us justified the conclusion reached by the referee. It is true, as urged by the learned counsel for the appellant, that in an action to recover for money misappropriated it is necessary for the party alleging the misappropriation to prove it, and to produce evidence sufficient to overcome the presumption of innocence in favor of the defendant. But in this case the plaintiff satisfactorily proved the facts by the admission of Brodhead. While it is true, as held in works upon evidence, that in many cases an admission is the weakest kind of testimony, yet an admission made as was that of Brodhead to Hume, is most satisfactory evidence. It was an admission made in the course of business. Hume was plaintiff’s cashier. Deceased was its ex-cashier. The former was inquiring, as he properly could, in regard to money collected by deceased while cashier of plaintiff. To such inquiry Brodhead, in substance, told plaintiff’s cashier that he had the money, and Hume further testified that it was never paid to plaintiff.

This evidence, we think, sustains the finding of the referee, and we, therefore, conclude that the judgment should be affirmed, with costs.

HeebiCK and EubsmaN, JJ., concurred.

Judgment affirmed, with costs.


author: PUTNAM, P. J.:

text:
    Alice E. Rich, Plaintiff, v. Adelbert E. Rich, Defendant.

      Mffect in the State of New York of a foreign judgment of divorce— liability of the husband for the support of a child given to the wife.

    If, in an action brought in the courts of a sister State by a husband against his wife to procure an absolute divorce, the husband being at that time an actual and bona fide resident of that State, the wife voluntarily appears in the action, the judgment is to be considered in all respects the same as if she had been a resident of such State at the time the judgment was granted, and is as binding upon her in the State of New York as in the State wherein the judgment was rendered.
    Full faith and credit must be given in each State to the judicial proceedings of every other State, and such proceedings have the same effect in every court within the United States as they have by law or usage in the courts of the State in which they are taken.
    Where, by a judgment of divorce rendered in a sister State, a wife was awarded costs and also given the custody of the infant child of the parties until he attained a certain age, and no allowance was made for the support and maintenance of such child, although the court might have made such a provision, such judgment is a bar to an action brought by the wife in the State of New York to recover from the husband an allowance for the support and maintenance of their child.
    The case is regarded in the same way as if the judgment of divorce had been granted by the courts of the State of New York; the presumption is that every question involved in the action in which the judgment was rendered was passed upon by the court, and as the right of the wife to an allowance for the maintenance of the child was one of such questions, her claim for such allowance must be held to have been decided adversely to her.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

      G. L. Allen, for the plaintiff.'

      Edwin A. King, for the defendant.
   PUTNAM, P. J.:

The legal questions submitted in this case are so well settled that we deem it unnecessary to write an opinion. The defendant, being an actual and bona fide resident of the State of Nebraska, in April, 1886, commenced an action against the plaintiff, his wife, for an absolute divorce in the District Court of Cass county in said State, a court of general and competent jurisdiction. The plaintiff then resided in. Washington county in this State. She- voluntarily appeared by attorney in said action, served an answer therein and was sworn as a witness. The case was tried and judgment for an absolute divorce was granted in favor of the defendant and against plaintiff on the ground of desertion, in compliance with the laws of the State of Nebraska. No appeal has been taken from this judgment and it remains in force. It provided, among other things, that the mhrriage contract theretofore existing between the parties be, and the same was, dissolved, and that both parties were relieved from the obligation thereof. Plaintiff having voluntarily appeared in said action, the judgment is to be considered in all regards the same as if plaintiff, at the time it was granted, was a resident of Nebraska. • Hence, by the judgment of a court of general and competent jurisdiction, and having jurisdiction over the parties and snbjeqt-matter, an absolute divorce lias been granted in pursuance of the 'laws of Nebraska to the defendant. That judgment is as binding upon the plaintiff in this State as in Nebraska. Full faith and credit must be given in each State to the judicial proceedings of every other State. Such proceedings have the same effect in every court within the United States as they have by law or usage in the courts of the State in which they are taken. (U. S. Const. art. 4, § 1; Act of Congress, May 26, 1790, 2d sess. chap. 11; H. S. R. S. 170, §905. See, also, Hunt v. Hunt, 72 N. Y. 217; Jones v. Jones, 108 id. 415; de Meli v. de Meli, 120 id. 485-495; Kinnier v. Kinnier, 45 id. 535-539.)

It follows, in answer to the first question submitted, that the plaintiff, Alice E. Rich, is not the lawful wife of the defendant, Adelbert E. Rich.

In answer to the second question propounded, we are of the opinion that the plaintiff cannot recover of the defendant any sum for the past education, support and maintenance of the infant child of the parties. In the judgment granted in the District Court of Cass County, Nebraska, an allowance was made of $100 to the plaintiff for alimony, and she was also awarded costs. She was given the custody of the infant child of the parties until he attained the age of eight years. No allowance was made for his support and maintenance. The court could have made a provision for the maintenance of the child, but failed to do so. On the question under con-¿deration this case should be regarded the same as it would have been had the judgment of divorce been granted by the courts of this State. The law presumes that every question involved in the action in which the judgment was rendered — and the right of the plaintiff to an allowance for the maintenance of the child was one of those questions — was passed upon by the court, and that the claim for such maintenance was decided adversely to the plaintiff.

We think the judgment in the Nebraska court is a bar to plaintiff’s claim. The principle declared in Kamp v. Kamp (59 N. Y. 212) prevents an allowance to plaintiff for the support and maintenance of the child of the parties.

Let a judgment be entered in pursuance of this memorandum and the stipulation of the parties, without costs.

HbeRicK and FubsMAN, JJ., concurred.

Judgment for defendant as per opinion, without costs.