
    Charlotte B. Gebhard, Plaintiff, v. Edward Gebhard, Defendant.
    (Supreme Court, Albany Special Term,
    October, 1898.)
    1. Absolute divorce — Service of notice of motion, to vacate judgment, properly made on her attorney.
    A notice of a motion, to vacate as fraudulent a judgment of absolute divorce obtained by a wife from her husband, may properly be served on her attorney of record; and where it is shown that she appeared on the motion by counsel and also procured a postponement, she cannot, in a subsequent action brought by her to procure an absolute divorce from a man whom she had subsequently attempted to marry, attack the validity of the order vacating the former judgment, and particularly in a case where she now claims rights under that judgment.
    
      2. Same —Jurisdiction not acquired by foreign court.
    Where the wife is a resident of the state of New York, and does not in any manner appear in an action for a divorce brought by her husband in a foreign state, where he then resided, its courts acquire no jurisdiction of her by a substituted service upon her by mail of a petition and order in the action, nor by personal service of these papers upon her at her residence in this state.
    3. Same — Exception to the rule that a wife’s domicile follows her husband’s.
    The invalidity of the foreign divorce, sought by the husband, is not cured by the rule that the domicile of a wife follows that of her husband, as an exception arises where, his conduct has been such as to entitle her to an absolute or limited divorce; and where the proof is that, upon learning of his infidelity, she came into the state of New York, soon after began here an action for an absolute divorce and procured a decree, the exception governs and the rule does not.
    Motion for alimony and counsel fees in an action for divorce.
    Mayham & Holmes (S. L. Mayham, of counsel), for plaintiff.
    Edward Gebhard, defendant, in person (Hobart Krum, of counsel).
   Chester, J.

The plaintiff has brought this action for an absolute divorce. She and the defendant have been living separate and apart for about eighteen years. The defendant insists that the plaintiff is not his wife, and in 1896, was married to another woman in Hew Jersey and is now living with her in this state. The plaintiff now makes this motion for alimony and counsel fees.

I am convinced from my examination of the case that the plain- ■ tiff has never been legally divorced from Hichols, to whom she was married in 1866, and who is still living.

In support of the motion she relies upon two decrees of divorce from him; one obtained in Hew York in 1869 upon a suit brought by her against him, and the other in Connecticut in a suit brought by him against her in 1810.

It appears that the Hew York decree was made on the 12th and entered on the 13th day of July, 1869, in Hew York county. Upon the next day the plaintiff and this defendant, Gebhard, went through a ceremony of marriage between them at Schoharie, in this state. On the 30th day of September following, Hichols obtained an order in the action brought by the plaintiff against him in Hew York setting aside and vacating the decree' of divorce which she had procured therein, on the ground of fraud and imposition upon the court. , .

The plaintiff insists that she had no notice of the application for that order and that the person who appeared as her attorney of record in that action, upon whom notice was served, was never retained by her. Hotice to the attorney of record has been held to be sufficient in applications of this kind. Miller v. Miller, 37 How. Pr. 1. And tlie court may properly assume that his appearance as her attorney was authorized where, as here, she is claiming rights under the very decree procured for her in his name as her attorney of record. See Hamilton v. Wright, 37 N. Y. 502; Brown v. Nichols, 42 id. 26; People ex rel. Adams v. Coleman, 41 Hun, 307. Under such circumstances, she should not be heard to question his authority. It appears also that the plaintiff had knowledge of the application to vacate the decree as the order vacating it shows that she appeared by counsel on the motion and procured a postponement and also raised the question that notice should have been served upon her personally, but notwithstanding this the order was granted and the decree vacated. That order still stands.

The decree having been set aside for fraud was rendered void ab initio and had no effect upon the marriage relations of the parties, and, therefore, a second marriage by the wife during the lifetime of the husband was void. 5 Am. & Eng. Ency. of Law (1st ed.), p. 846, and cases cited.

With respect to the Connecticut decree, it appears that it was obtained by Nichols upon a service of process upon his wife, who is the plaintiff here, outside of that state. In his petition or bill of complaint Nichols alleges that she deserted him about May 23, 1868', and that she was at the time of the commencement of the action residing in Montreal, Canada. It appears, however, that she was in fact at that time and had been for several months prior thereto, living with this defendant, Gebbard, in a house which she had purchased at Schoharie, in this state, in August, 1869. The record in the Connecticut ease shows that the service was made upon the defendant (the plaintiff here), pursuant to an order for a substituted service by mailing the petition and order addressed to her at Montreal, in Canada, and also to her at Schoharie, in this state, and also that she was served personally with the petition at Schoharie. This, under the decisions in this state, was not sufficient to give the Connecticut court jurisdiction over the defendant in the suit there if she was at the time a resident of this state, she not appearing in such suit in person or by attorney. People v. Baker, 76 N. Y. 78; O’Dea v. O’Dea, 101 id. 23; Shepard v. Wright, 113 id. 582; Matter of Kimball, 155 id. 62; Atherton v. Atherton, id. 129.

And the question of such jurisdiction is always open to inquiry-in the courts of this state. Hunt v. Hunt, 72 N. Y. 217.

It is here urged in her behalf that her domicile followed that, of her husband, for the purposes of that action, and for that reason that she was a domiciled citizen of Connecticut at the time the suit was commenced.

It is sought to apply the doctrine of Hunt v. Hunt, 72 H. Y. 217, where it was held in sustaining a Louisiana divorce, that the matrimonial domicile of the wife was that of the husband. But in that, and other cases where this doctrine has been applied, it is recognized that there are exceptions to the rule. One of the exceptions mentioned in the Hunt case, is “ when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce.” Id., p. 242.

In support of a former motion made by the plaintiff in this suit for alimony and counsel fee, which was denied, without prejudice to a renewal, shé swears “ that on or about the 8th day of May, 1866, she was married to him (Hichols), at the town of Hewton, in the state of Connecticut, and that thereafter she lived and cohabited with him in the city of Hew York until about the year 1868, when she was informed of the infidelity of said Hichols to his marriage obligations and was advised by her aunt (with whom she was living prior to her marriage, her father and mother being dead) to institute an action for divorce against him.”

Soon after this she commenced in Hew York, the action against Hichols for an absolute divorce and procured the decree therein against him, which was thereafter vacated as above mentioned.

When she was informed of the infidelity of Hichols, and thereupon began an action against him for an absolute divorce, because of such infidelity, I think the case is fairly brought within the exception above referred to.

More than this, Hichols' in his petition for divorce in Connecticut, which is dated January 10, 1870, alleged that his wife was not a resident of that state and thereupon procured an order for a substituted service of process upon her as a nonresident there. In her earlier action against him in this state, she had sworn in her complaint, verified April 23, 1869, that she was a resident of Hew York. She had in fact been living with Gebhard as above stated in her own house, in this state, for several months prior to the commencement of the Connecticut suit'and has ever since resided here.

In view of these facts I do not think that the legal fiction, that her domicile followed that of Hichols, for the purpose of giving force here to the Connecticut decree, can well be applied.

On this motion the plaintiff has changed the statement, above quoted from her affidavit used on the former motion, that after her marriage with Hichols in Connecticut in 1866, she lived with him in Hew York until 1868, and now says that after such marriage “she lived and cohabited with him in Connecticnt, but at times temporarily boarded in the city of Hew York, retaining their home in Connecticut aforesaid.” The purpose of this change of statement is apparent. In determining the value of either statement as evidence, the fact cannot be overlooked that the first is widely different from the last, and has evidently been made as an afterthought for the purpose of supporting the Connecticut decree in view of the new light thrown thereon by investigation of the law applicable thereto, since the former motion was made. The defendant here, in his affidavit, corroborates the statement of the plaintiff on her former motion, concerning her residence and that of Hichols in Hew York. He says that “ he knew the plaintiff and her husband (Hichols) in the fall of 1867, that they were then living at the St. Denis Hotel in the city of Hew York, the said Hichols being engaged in business in said city and having an office in Pine street in said city, and they continued to so live at the said hotel until the spring of 1868, when the plaintiff went to Europe and sojourned there about one year.” If, as may be fairly held from all this proof, Hichols resided in Hew York at the time when, as he says, in May, 1868, she abandoned him, and if her domicile followed his, it would still fix her residence in Hew York state in accordance with her statement as to residence upon the former motion.

If she separated from him while they were residing in Hew York in 1868, because of her discovery of his alleged infidelity to her and he thereafter removed to Connecticut for the purpose of procuring a divorce from her there, as seems to be a fair inference froni the proof, I do not think her residence or domicile here was affected by such removal.

I am constrained, therefore, to hold that the Connecticut decree cannot be upheld here.

The plaintiff not being lawfully divorced from Hichols, and he being still living, is not the lawful wife of the defendant, and he cannot, therefore, be called upon to pay her alimony and counsel fees in this action.

If I am correct in the views here expressed it is unnecessary to consider whether or not the decree of divorce obtained in 1892, by Gebhard, from this plaintiff in Yew Jersey, upon a service upon her of process in this state, is valid, or the effect of the'ceremony of marriage performed between them in Yew Jersey in 1879. The motion is denied, but without costs.

Motion denied, without costs.  