
    Linda Kagen, an Infant and Another, by Their Parent Anita Reisner, et al., Respondents, v. Theodore Kagen, Appellant.
    Argued January 8, 1968;
    decided February 29, 1968.
    
      
      Edward Sharf and Neil Robert Ross for appellant.
    I. The Supreme Court may grant support and maintenance for children only where statutorily permissible, and it has no jurisdiction to declare a stated support, a vacation fund, or an education fund except where it is incidental to an appropriate matrimonial action. (Langerman v. Langermcm, 303 N. Y. 465.) II. The Appellate Division erred in holding the Vazquez case as determinative of the issues in the instant case. (Vazquez v. Vazquez, 26 A D 2d 701; Rehill v. Rehill, 306 N. Y. 126.) III. A foreign decree of divorce that incorporates and approves all the terms,. provisions and conditions of a separation agreement may not be modified, revised or reformed by the New York courts once the agreement itself is ratified, confirmed and approved by the foreign court. IV. The amendment to the Constitution of the State of New York did not increase the equity jurisdiction of the Supreme Court. (Langerman v. Langerman, 303 N. Y. 465; Matter of Lewis v. Lewis, 2 Misc 2d 849, 5 A D 2d 674, 5 A D 2d 777, 4 N Y 2d 872, 6 A D 2d 690; Hetman v. Hetman, 190 Misc. 991.)
    
      Sidney Robert Lee for respondents.
    I. Children have independent, legal and constitutional rights. (Betz v. Horr, 250 App. Div. 457; Matter of County of Santa Clara v. Hughes, 43 Misc 2d 559; Brock v. Brock, 4 A D 2d 747; “ Werner ” v. “ Werner ”, 204 Misc. 1085; D. M. E. v. D. E. E., 179 Misc. 406; Mollina v. Mollina, 167 Misc. 343; Prindle v. Dearborn, 161 Misc. 95; “Johnston ” v. “ Johnston ”, 177 Misc. 618; Krieger v. Krieger, 162 Misc. 930; Smith v. Smith, 48 Misc 2d 895; Loomis v. Loomis, 288 N. Y. 222; Morse v. Morse, 8 Misc 2d 163.) II. The Supreme Court has original jurisdiction in law and equity unless the contrary plainly appears. (Langerman v. Langerman, 303 N. Y. 465; Gallagher v. Pagliaro, 278 App. Div. 898; Matter of Guillermo v. Guillermo, 43 Misc 2d 763; Matter of 3505 Realty Corp. v. Weinberger, 41 Misc 2d 254; Barone v. Aetna Life Ins. Co., 260 N. Y. 410; Alexander v. Bennett, 60 N. Y. 204; Vazquez v. Vazquez, 26 A D 2d 701; People v. Davis, 27 A D 2d 299.)
   Burke, J.

This appeal requires us to determine the effect of the 1962 amendment to section 7 of article VI of the State Constitution upon the general original jurisdiction of the Supreme Court.

In August, 1962 Anita and Theodore Kagen entered into a separation agreement which was thereafter incorporated in a Mexican divorce decree. Under one of its provisions, defendant was paying his wife $60 a week for the support and maintenance of their two children. Plaintiff infants, by their parent and natural guardian, Anita Reisner, and Anita Reisner individually commenced the present action in September, 1965. Their complaint sets forth four causes of action, three of which are involved herein. Specifically, plaintiffs seek a declaratory judgment establishing the right of the infants to (1) annual support payments of $7,500 for each infant; (2) an annual vacation fund of $1,000 apiece, and (3) an annual educational fund of $2,000 each.

Defendant moved to dismiss this portion of the complaint. In granting this motion on the ground that the Supreme Court was without subject-matter jurisdiction, the court said: “ There is no statute, relevant to this case, providing for award of support and maintenance for children other than section 240 of the Domestic Relations Law and article 4 of the Family Court Act. Section 240 of the Domestic Relations Law is self-limiting to [specifically enumerated actions] and therefore is not applicable to this action. Support proceedings pursuant to article 4 * * * are within the exclusive original jurisdiction ’ of the Family Court (Family Ct. Act, § 115, subd. [a], par. [ii]; § 411). ” (48 Misc 2d 856, 857.)

The Appellate Division reversed, relying upon its own prior decision in Vazquez v. Vazquez (26 A D 2d 701), wherein they held that concurrent jurisdiction exists in the Supreme Court and the Family Court to direct support for infants in an ‘ ‘ appropriate [matrimonial] action”. The correctness of this order, sustaining jurisdiction in the Supreme Court, was presented to us as a certified question.

Prior to the 1962 amendment to the Constitution, that document provided in part: ‘‘ The supreme court is continued with general jurisdiction in law and equity ” (N. Y. Const., art. VI, § 1). Under this provision, it was well settled that the Supreme Court lacked jurisdiction to order support and maintenance for the children of a dissolved marriage except as an incident to a proper matrimonial action. Thus, in Langerman v. Langerman (303 N. Y. 465), it was held that an action such as the present one—commenced solely for the support and maintenance of the children—was not within the jurisdiction of the Supreme Court. “ The relief sought may be granted only as an incident to a marital action.” (Id., p. 471.)

In Vazquez (supra), relied upon by the Appellate Division below, that court intimated that the Constitution, as amended effective September 1, 1962, might well have enlarged the jurisdiction of the Supreme Court. However, it was not necessary for that court to reach this point since they found there an “appropriate [matrimonial] action” as required by Longer man. “ We consider an action to declare the invalidity of a foreign decree an appropriate action for the determination of the support of children ” (26 A D 2d, supra, p. 703). Clearly Vazquez is not dispositive here since this is simply an action for a declaration of the rights of children, due to the changed circumstances of the defendant. Consequently, we must consider whether the jurisdiction of the Supreme Court has been enlarged by the present amendment to the Constitution so as to confer jurisdiction over the present action.

Under the new amendment, the Supreme Court is endowed with general original jurisdiction in law and equity. (N.Y. Const., art. VI, § 7, subd. a.) Furthermore, “If the legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings,” even though the Legislature confer other courts with jurisdiction over these same actions and proceedings. (N. Y. Const., art. VI, § 7, subd. c.)

Prior to this amendment, we had held that, whenever the Legislature created a cause of action unknown at common law, jurisdiction to entertain this action vested in the Supreme Court unless this jurisdiction was specifically proscribed. (Thrasher v. United States Liab. Ins. Co., 19 N Y 2d 159, 166.)

Undoubtedly, an argument can be advanced that the words ‘ ‘ new classes of actions and proceedings ’ ’ were intended to refer only to ‘ ‘ classes of actions and proceedings ’ ’ not recognized prior to the effective date of this amendment, merely obliging the Legislature to confer at least concurrent jurisdiction on the Supreme Court each time a new class of action or proceeding was subsequently created—thus unaffecting the jurisdiction of the Supreme Court as it theretofore existed. This same end could have been attained without the aid of a constitutional amendment. (Thrasher v. United States Liab. Ins. Co., supra.)

An alternative construction, which we have adopted, giving the amendment greater significance, is that it was intended to increase the jurisdiction of the Supreme Court even as to “ classes of actions and proceedings ” recognized at the time of the amendment’s adoption. This reading of the amendment removed all limitations previously imposed upon the court’s jurisdiction. In our recent decision, Matter of Seitz v. Drogheo (21 N Y 2d 181,185-186), we determined that the right to commence any proceeding not recognized at common law should be considered a new action or proceeding for jurisdictional purposes under section 7 of article VI of the Constitution. In this way, we are merely adhering to one of our earliest rules of construction, i.e., that the Supreme Court is a court of original, unlimited and unqualified jurisdiction. (See De Hart v. Hatch, 3 Hun 375; Mussen v. Ausable Granite Works, 63 Hun 367; People ex rel. Swift v. Luce, 204 N. Y. 478.)

With reference to this particular action, section 461 (subd. [b], par. [ii]) of the Family Court Act empowers that court to entertain applications for the modification of prior support orders on the basis of a change of circumstances. While a comparable procedure existed in the New York City Domestic Relations Court Act (§ 137) and the Children’s Court Act (§ 33) prior to the adoption of this amended Constitution, such relief was unknown at common law. (Langerman v. Langerman, supra.) Thus, this action is encompassed within the “ new classes of actions and proceedings ” of which the Supreme Court is given jurisdiction in article VI (§ 7, subd. c) of the amended Constitution.

As noted earlier, the Supreme Court, in dismissing these causes of action, relied upon section 411 of the Family Court Act which purports to confer exclusive original jurisdiction upon the Family Court for all proceedings commenced under article 4 of. that act. This position is supported by a provision in the Constitution providing that this particular action be maintained in the Family Court. (N. Y. Const., art. VI, § 13, subd. b.) Neither provision, however, requires that this action be dismissed. With reference to section 411, it is sufficient to note that this section also applied to the action in Seitz (supra) wherein we held that concurrent jurisdiction existed between the Supreme Court and the Family Court. Also, while subdivision b of section 13 of article VI provides that this action be brought in the Family Court, subdivision d of the same section states that “ The provisions of this section shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of this article.” Thus, this section can only be construed as evidencing an intent that the jurisdiction of the Supreme Court, as provided for under any other provision of the Constitution, should be unaffected by this grant of jurisdiction to the Family Court.

Our decision that the jurisdiction of the Supreme Court has been expanded by the amendment to the Constitution in no way signals a contraction of the jurisdiction of specialized courts such as the Family Court. In matters such as this, plaintiffs are at liberty to commence their proceeding in the Family Court. If, instead, they should choose the Supreme Court for purposes of litigation, that court is empowered to “ transfer any action or proceeding, except one over which it shall have exclusive jurisdiction * * * to any other court having jurisdiction of the subject matter ” (N. Y. Const., art. VI, § 19, subd. a), or to. retain jurisdiction over such an action. (See, e.g., Dicker v. Dicker, 54 Misc 2d 1089.) In such instances, the Supreme Court must exercise its discretion as to whether it would be appropriate to transfer a particular matter to a court of concurrent jurisdiction, possessing unique, specialized capabilities and expertise. In many cases, obviously, this would be the better practice.

Conversely, our decision in this case may not be read as affecting the exclusive jurisdiction of the Court of Claims over claims against the State. Over a half century ago this court held that the Supreme Court lacked jurisdiction of claims against the State not because of the nature of the matter litigated but solely because of the immunity of the State from suit (People ex rel. Swift v. Luce, 204 N. Y. 478, 487, supra; see, also, Benz v. New York State Thruway Auth., 9 N Y 2d 486; Matter of Plumbing Assn. v. New York State Thruway Auth., 5 N Y 2d 420; Easley v. New York State Thruway Auth., 1 N Y 2d 374); and in light of these holdings it would be improper, indeed, to construe this amendment to the Constitution as affecting the Court of Claims’ jurisdiction.

Accordingly, the order appealed from should be affirmed, without costs, and the question certified should be answered in the affirmative.

Jasen, J. (dissenting).

Indisputably, the Supreme Court possessed no subject-matter jurisdiction over the instant type of support action prior to the 1962 amendment to section 7 of article VI of the State Constitution. (Langerman v. Langerman, 303 N. Y. 465.) A comparable procedure existed in the New York City Domestic Relations Court Act (§ 137) and the Children’s Court Act (§33) prior to the adoption of the amended Constitution. The case at bar clearly, therefore, cannot be considered a “ new class of action or proceeding ” unknown prior to the 1962 constitutional amendment.

The general jurisdiction of the Supreme Court historically included its common-law jurisdiction plus all causes of action created subsequently except where the Legislature specifically proscribed its jurisdiction. (N. Y. Const., art. VI; Thrasher v. United States Liab. Ins. Co., 19 N Y 2d 159, 166.) The Legislature specifically proscribed the subject-matter jurisdiction of the Supreme Court over the type of support action involved in the instant case prior to the 1962 amendment of article VI by conferring exclusive jurisdiction upon the Domestic Relations and Children’s Courts.

The new amendment provides, ‘‘ If the legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings (N. Y. Const., art. VI, § 7, subd. c; emphasis supplied.) The clear and unequivocal meaning- of this amendment is to abolish the power of the Legislature to proscribe the jurisdiction of the Supreme Court concerning classes of actions and proceedings created subsequent to the effective date of the amendment. The exclusive jurisdiction possessed by specialized courts prior to the amendment is unaffected. We recently construed this language for the first time in Matter of Seitz v. Drogheo (21 N Y 2d 181), an action to enforce the support provisions of a Mexican divorce decree. Prior to the amendment of section 466 of the Family Court Act (L. 1965, ch. 355, eff. Sept. 1, 1965), the courts of this State were without jurisdiction to enforce or modify the provisions of a foreign matrimonial decree under the facts in Seitz. (Domestic Relations Law, §§ 243, 245; Miller v. Miller, 219 App. Div. 61, affd. 246 N. Y. 636.) In Seitz we found that the Legislature necessarily vested the Supreme Court with concurrent jurisdiction because article VI (§ 7, subd. c) does not allow the vesting of exclusive jurisdiction of a new class of action or proceeding in the Family Court. Seitz is unquestionably correct law because jurisdiction over the class of action involved in that case was conferred upon the courts of this State for the first time in 1965 (L. 1965, ch. 355) subsequent to the effective date of the amendment to section 7 of article VI.

This construction of the effect of the 1962 amendment is confirmed by the fact that article VI (§13, subd. a) established the Family Court and subdivision b of section 13 provided that the proceeding involved in the case at bar be originated in the Family Court in the manner to be provided by the Legislature. It should be noted that article VI (§ 13, subd. b) does not limit or impair the jurisdiction of the Supreme Court because the Supreme Court has never had jurisdiction over this type of action (Langerman v. Langerman, supra). Section 411 of the Family Court Act, implementing the constitutional amendment, confers exclusive jurisdiction over the instant proceeding upon the Family Court.

The Report of the Joint Legislative Committee on Court Reorganization (McKinney’s 1962 Session Laws, pp. 3428-3447) reveals that the Family Court Act represents a carefully considered legislative policy judgment of the best method of dealing with the sensitive problems of family life. The Joint Legislative Committee acknowledged in its report that the proposed Family Court would be controversial because it faced sensitive and delicate areas of life about which reasonable men may differ. However, the structure and powers of the Family Court are properly within the authority of the Legislature, and the Legislature has clearly and unequivocally spoken.

The majority’s strained construction of the amendment to section 7 of article VI of the State Constitution abolishes the exclusive jurisdiction of the Family Court. The majority, in effect, has construed the words “shall create new classes of actions and proceedings ” in section 7 of article VI to mean “ all classes of actions and proceedings whenever created.” (Emphasis supplied.) This construction ignores the plain wording of section 7 of article VI, renders the words shall create new ” meaningless, and frustrates clear legislative intent. Worse, this construction includes within the Supreme Court’s general original jurisdiction all non-common-law actions and proceedings which the Legislature conferred exclusively upon other courts prior to the amendment of section 7 of article VI. Presumably, this decision abolishes the exclusive jurisdiction of all specialized courts. Thus this decision spawns the very evil of forum shopping which the Legislature sought to avoid by conferring exclusive jurisdiction upon specialized courts possessing unique capabilities and expertise.

The Legislature possessed the power to increase the general jurisdiction of the Supreme Court to include the instant type case prior to the new amendment. Perhaps some litigants prefer the familiar procedures of the Supreme Court to the more informal proceedings of the Family Court. However, this is clearly a legislative decision requiring policy judgments. The Legislature chose not to strip the Family Court of its exclusive jurisdiction. Recognition of the exclusive jurisdiction of the Family Court is now compelled by article VI (§13, subd. b) of the amended Constitution.

Accordingly, the question certified should be answered in the negative, and the order of Special Term should be reinstated.

Chief Judge Fuld and Judges Bergan and Keating concur with Judge Burke ; Judge Jasen dissents and votes to reverse in a separate opinion in which Judges Scileppi and Breitel concur.

Order affirmed, etc.  