
    Henry George Dunstan, Resp’t, v. Cecil Campbell Higgins, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 11, 1893.)
    
    Judgment — Foreign.
    A judgment rendered by a court of a foreign country is conclusive upon "the merits, andean be impeached only by proof that the court had no jurisdiction of the subject matter or of the person of the defendant, or that it was procured by means of fraud. A refusal of the foreign court to allow a commission to examine witnesses here does not affect the conclusive character of the judgment.
    Appeal from judgment of the supreme court, genera] term, first department, affirming judgment in favor of plaintiff.
    
      Cecil Campbell Higgins, for app’lt; S. R. Ten Eyck, for resp’t.
    
      
       Affirming 43 St. Rep., 764.
    
   O’Brien, J.

The plaintiff recovered in an action upon a judgment in his favor and against the defendant, rendered in 1890 by the supreme court of judicature in England. It appears that the plaintiff, in pursuance of an agreement, manufactured and shipped at London to the defendant at New York an omnibus and Beaufort cart, at a price agreed upon. Suit was brought upon the account by the plaintiff against the defendant in-England, and personal service of process was made upon him there, and jurisdiction obtained by the court of the person of the defendant and the subject-matter of the action. The defendant appeared and interposed for defense, in substance, that the articles were manufactured and shipped under a special contract, by which the price and the character and quality of the articles were particularly specified, and that the goods, when received by the defendant, did not conform to the agreement, but were practically worthless to him. The plaintiff denied that there was any agreement to manufacture such vehicles as the defendant claimed, and asserted that the articles delivered conformed in all respects to the defendant’s order. While the action was at issue in England, the defendant applied to the court for a commission to examine witnesses in this country to prove the allegations of his answer. This application was denied; upon what ground or for what reason does not appear. The defendant did not appear for trial, and the court ordered judgment against him, and for defense to-this judgment in our court he has interposed substantially the same facts, and insists that it is unjust and unfair, and that as he was not permitted to produce his proofs at the trial in England, he is not now bound by the judgment. He also applied to the courts here in this action for a commission to examine witnesses in England, which application was refused, and upon the trial the court held that the foreign judgment was conclusive, and that the plaintiff was entitled to recover.

The general term has affirmed the judgment, and also the order refusing the commission, and the appeal to this court is from both determinations. It is the settled law of this state that a foreign judgment is conclusive upon the merits. It can be impeached only by proof that the court in which it was rendered had not jurisdiction of the subject-matter of the action or of the person of the defendant, or that it was procured by means of fraud Lazier v. Weskott, 26 ÍT. Y., 146. The judgments of the courts of a sister state are entitled to full faith and credit in the courts of the other states under the constitution of the United States, but effect is given to the judgments of the courts of foreign countries by the comity of nations which is part of our municipal law. The refusal of the foreign court to allow a commission to examine witnesses here does not affect the conclusive character of the judgment. Such' applications are generally within the discretion of the court to which they are addressed, and then a refusal to grant them does not constitute even a legal error subject to review. But even if it appeared in this case, as it does not, that some legal right of the defendant was. denied in refusing the application, that would not affect the validity or conclusive nature of the judgment, so long as it stood unreversed and not set aside. Legal errors committed upon the trial or during the progress of the cause may be corrected by appeal or motion to the proper court, but they furnish no defense to an action upon the judgment itself. Where a party is sued in a foreign country, upon a contract made there, he is subject to the procedure of the court in which the action is pending, and must resort to it for the purpose of his defense, if he has any, and any error committed must be reviewed or corrected in the usual way. So long as he has the benefit of such rules and regulations as have been adopted or are in use for the ordinary administration of justice among the citizens or subjects of the country he cannot complain, and justice is not denied to him.

The presumption is that the rights and liability of the defendant have been determined according to the law and procedure of the country where the judgment was rendered, and there is nothing in the record to the contrary. The questions of fact or law settled by this judgment could not be re-examined in our courts. The judgment was properly authenticated and established at the trial under the provisions of the Code. The order of our courts refusing the commission to examine witnesses in England was, so far as appears, a matter of discretion. As the foreign judgment was conclusive the facts stated in the answer were not admissible as proof upon the trial, and therefore, it is clear that no legal right of the defendant was violated by the denial of his application.

The judgment should be affirmed, and the appeal from the order dismissed.

All concur, except Gray, J., not voting.  