
    Van Cleaf v. Burns et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Dower—How Divested—Foreign Divorce.
    Where a foreign judgment of divorce, though for cause other than adultery, has the effect to deprive the wife of dower in the state where it is rendered, it will have the same operation in New York.
    Appeal from special term, Kings county.
    Action by Mary B. Van Cleaf against Catharine Burns and others for dower. Defendants appeal from a judgment for plaintiff. Reversed.
    The action was brought for dower of lands in Kings county. The defense was that the right to dower was barred by a judgment of absolute divorce obtained in Illinois by the husband of plaintiff against her for her misconduct. The case was twice tried. On the first trial the complaint was dismissed, and the judgment of dismissal was affirmed on appeal to the general term, (43 Hun, 461,) but, on appeal to the court of appeals, was reversed, and a new trial awarded, (23 H. E. Rep. 881.) On the second trial it appeared that the ground of the divorce was the willful desertion by the wife of her husband without cause, and that the court had jurisdiction of the parties therein. The trial court found as follows: “That at the time of the pendency of said action in the state of Illinois, and at the time of the entry of said judgment, the following was a portion of the statute law of said state: ‘If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure; but, if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by the laws of this state in the real or personal estate of the other, shall be forfeited.’ That by the laws of Illinois, during the period of the marriage between the plaintiff and David Van Cleaf, and at the time of said divorce, a wife was, upon the death of her husband, endowed of one-third the lands of which her husband had been seised of an estate of inheritance during coverture. That the cause for which the said divorce was granted was at the time of the said divorce, and of the pendency of the action therefor, by the law of Illinois, ‘ misconduct,’ within the meaning of said statute, and the said divorce, by virtue of said statute, worked a forfeiture of, and terminated and extinguished, all dower and right of dower of this plaintiff in the lands of said David Van Cleaf in the state of Illinois.” Judgment was given for plaintiff, and defendants appealed.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Josiah T. Marean, for appellants. John H. Kemble, for respondent.
   Dykman, J.

We think this judgment in favor of the plaintiff should be reversed. By the case as it is now presented, it expressly appears that the judgment of divorce granted by the court in the state of Illinois has the effect to deprive the plaintiff of dower in that state, and the case is thus free from the decision of the court of appeals. In the opinion of that court it was said: “Ho misconduct, other than adultery, is here permitted to deprive a wife of existing dower-rights, even if it be the basis of a judgment of divorce lawfully rendered in another state, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion.” 23 N. E. Rep. 881. As, therefore, the judgment of divorce has the effect to deprive the plaintiff of dower in the state of Illinois, the jurisdiction where the judgment was rendered, we think it should be permitted the same operatibn in this state. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.  