
    Belle Bemiss Barber, Appellant, v. George Holcomb Barber, Respondent.
    First Department,
    April 8, 1910.
    Husband and wife — separation—residence — jurisdiction — process — service by publication—jurisdiction of court not determined on motion.
    A woman may maintain an action for separation in this State if though the parties married without the State, they afterwards became residents, continued to be such for a year, and the plaintiff is a resident when the action is commenced.
    Where the complaint in an action for separation against a non-resident defendant states facts giving jurisdiction to the court, an order for service by publication will not be set aside on the defendant’s affidavits alleging that the parties never acquired a matrimonial domicile in this State. The jurisdictional questions should be determined upon trial, not by affidavit.
    Appeal by the plaintiff, Belle Bemiss Barber, from an -order of . the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of October, 1909, vacating and setting aside an order of publication herein and the service of the summons and complaint and other proceedings.
    
      Harry K. Jacobs, for the appellant.
    
      Samuel Sobel, for the respondent.
   Dowling, J.:

The plaintiff brings this action to obtain a separation from the defendant on allegations of desertion and a failure to provide for her support. The complaint sets forth the marriage of the parties on December 17, 1895, at the city of "Washington, in the District of Columbia; that plaintiff and defendant have since their said marriage become residents of this State and so remained for one year from on or about the 1st day of April, 1898; and that the plaintiff at the time of the commencement of this action was and still is a resident of this State. This allegation brought the plaintiff within the provisions of section 1763, subdivision 3, of the Code of Civil Procedure, and made the action for separation one which could be maintained in this State. Upon this complaint and upon affidavits showing that the defendant was a non-resident of the State of New Fork, being in the service of the United States Navy Department as surgeon and residing or sojourning in the city of Boston, State of Massachusetts, and that he could not be served within the State of New Fork, an order was made for the service of the summons and complaint herein Upon the defendant by publication or personally, without the State, at the option of the plaintiff. It is not contended that there was any infirmity or defect in the moving papers, on which the order for the publication was granted. The defend- ■ ant, however, moved to vacate and set aside the order upón affidavits wherein he denied that lie had ever been a resident of the State of New York and wherein he conceded that he was at the present time and had been when the order was made a non-resident of this State. He disputed the jurisdiction of the court because he had been continually a non-resident of the State and claimed that he had never lived here for a period of one year as claimed by plaintiff..

Furthermore, he setup, by affidavits, the granting on May 15,1909, of a decree of divorce against the plaintiff in his favor in an action brought in the State of Rhode Island wherein the present plaintiff duly appeared by attorney, and also a release from alimony executed to him by the plaintiff. The motion to vacate was specifically made mpon two grounds: First, that the defendant had never been a resident of this State; second, that the parties had been divorced in another State before the commencement of this action. ■

From the order granting defendant’s- motion to set aside the order of publication the plaintiff now appeals. It .seems clear that this order was erroneous and. should not have been made. It is well settled that jurisdictional questions must be disposed of in an orderly way and after a proper trial; all the issues cannot be decided and the plaintiff’s rights determined merely upon affidavits.

The complaint sets forth a good cause of action. It may well be that when the time comes to submit, the proofs, plaintiff may find that she was mistaken as to her rights and that she will be unable, to establish by proof the allegations of her complaint; but that confers no power upon the court to try out the issues upon affidavits and to deny her the right to examine and cross-examine witnesses.

When a complaint upon its face shows facts which demonstrate that the court has no jurisdiction of the subject-matter of the action or of the parties, then the proper practice is to demur; if, on the other hand, the facts which deprive the court of jurisdiction, either of the subject-matter or of the parties, do not appear upon the: face of the pleadings, then the only remedy is by answer. (Atlantic & Pacific Telegraph Co. v. Baltimore & Ohio R. R. Co., 87 N. Y. 355; Johnson v. Adams Tobacco Co., 14 Hun, 89; Manning, Maxwell & Moore, Inc., v. Canadian Locomotive Co., Ltd., 120 App. Div. 735.)

The order of publication having been properly granted, the order now appealed from must be reversed, with ten dollars costs and disbursements to appellant, and the motion to set aside the order of publication and also to set aside the service of the summons and complaint made thereunder denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott,'JJ., concurred.

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