
    Florence M. De Meli, App’lt and Resp’t, v. Henry A. De Meli, Resp’t and App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Divorce—Jurisdiction—Residence of parties.
    A legal residence of a party to an action for separation or divorce is his permanent abode, which may be distinguished from his placé of temporary residence. The question as to whether a party has ceased to be a resident of this and become a resident of a foreign country is dependent upon, his intention.
    2. Same—Evidence—Code, § 831.
    Where plaintiff in an action for separation alleges that defendant had refused to permit her to return home, had slandered her among her friends accusing her of uncliastity, etc., and defendant in his answer alleges that plaintiff had committed adultery with a person named, at specified places, which plaintiff denies in her reply, it is proper to allow plaintiff to testify that there had been" no impropriety between the alleged paramour and herself.
    3. Same—Foreign judgment.
    The court refused to admit in evidence a judgment of the royal circuit court in Dresden, Germany, granting a divorce on behalf of defendant against plaintiff. Held, no error, as the foreign court had no jurisdiction of plaintiff’s person and the judgment was therefore a nullity.
    Appeal from judgment of the general term of the supreme court, in the first judicial department, affirming judgment entered upon decision of the special term.
    The action was brought for separation on the alleged ground of cruel and inhuman treatment. The defendant, by his answer,, put in issue the allegations of the complaint essential to that relief, and by way of counterclaims alleged abandonment of him by the plaintiff, also the commission by her of adultery, and asked as affirmative relief, first, separation, or second, a divorce. The trial court determined that neither party was entitled to the relief sought, and awarded costs and a sum for counsel fee to the plaintiff. Both parties appealed to the general term and to this, court.
    
      John M Parsons, for pl’ff; Herbert B. Turner, for def’t.
    
      
       Affirming 11 N. Y. State Rep., 291.
    
   Bradley, J.

The parties were married at Dresden, in the kingdom of Saxony, in March, 1870, and in October, 1881, she at that place left her husband, came to Mew York and in March, 1882, commenced this action for separation by obtaining an order for publication of the summons and causing the summons, with the complaint, to be personally served upon the defendant in the city of Dresden, Germany. The defendant, by his answer, denied that he was a resident of the state of Mew "York at the time of the commencement of the action, and alleged that the court was without jurisdiction of its subject matter. But with a view to affirmative relief he added that in the event it should be determined that he yras then a resident of this state, his allegation to that effect should be effectual to support his answer in that respect setting forth his counterclaims. The plaintiff gave much evidence with a view to establish the alleged cruel and inhuman treatment of her by the defendant, and the evidence of the latter tended to controvert, in the main, that given by her in that respect. And the evidence on the part of the defendant bearing upon his alleged counterclaims, so far as it tended to support the charges made against her, was in conflict with that given on the part of the plaintiff to meet it

The findings of fact by the trial court relating to the charges and counter charges of the parties were supported by evidence, and the conclusion necessarily followed that neither party was entitled to relief upon the issues presented for trial. And none of the exceptions to the conclusions of the court, and to the refusals to find as requested, other than that relating to the place of residence of the defendant at the time of the commencement of the action, require any further consideration on this review. The facts quite fully appear in the opinion of Judge Rumsey, at special term. 67 How., 20. The court found that at the time of the marriage in Dresden, Saxony, and since then to and including the time of the commencement of this action, both of the parties were and continued to be residents of the state of Mew York. It must be assumed that until the plaintiff left the defendant at Dresden, her place of residence was determined by his. And inasmuch as the parties were married abroad, and the alleged transactions upon which the charges were founded took place beyond this state while the plaintiff was absent from it, the fact that the parties were residents of this state at the time the action was commenced was essential to enable the court to entertain the action for the purpose of the relief sought in it by the parties. Code, §§ 1756, 1763. It is contended by the defendant’s counsel that there was no opportunity" given by the evidence to the court to find that the defendant was a resident of this state at the time the action was commenced. When the parties were born their parents were residents of the city of Mew York. From 1846 or 1847, when the defendant was four or five years of age, a considerable portion of the time prior to his marriage he was in Europe with his parents, who within that period spent portions of their time there and in the state of Mew York. The last time, prior to-that event, of their return to Europe was in 1868, when they went to Dresden. In that year the plaintiff went abroad with her parents, and after traveling about some they stopped at Dresden. Shortly after their marriage the parties came to New York, and from thence they went to Colorado, where the defendant was interested in some mines. They returned to Dresden in the fall of 1870, and thereafter they remained in Europe until the plaintiff came away and to New York, in October, 1881. While Dresden was treated by them as their European home, a considerable portion of their time was occupied in traveling.

The fact that they remained there as they did, would, if nothing appeared to the contrary, raise the presumption that the defendant had ceased to be a resident of the state of New York. But the question whether that relation to this state had been severed was dependent upon his intention. • There was some evidence tending to prove -that he regarded himself a resident of the state of New York; and that his purpose was continued during his absence from it, to return to this state as his place of residence. The weight of the evidence on that subject is not here for consideration. That question was disposed of in the court below. Bassett v. Wheeler, 84 N. Y., 466. It is true the defendant testified that he was a resident of Dresden, and had no intention of returning to the state of New York to reside, and contradicted the evidence on the part of the plaintiff tending to the contrary. But the fact that he was called as a witness by the plaintiff when he gave such evidence, did not conclude her on the question of his credibility on that subject. Becker v. Koch, 104 N. Y., 394; 5 N. Y. State Rep., 688.

It is, however, urged that although the continued purpose of the defendant, while absent from it, may have been to return to this state, he was, nevertheless, a resident of Dresden, and not of the state of New York; and that his place of residence was not determined by his domicile. That is so for some purposes, and in cases where it is applicable a change of the latter is not essential to the change of the former. In re Thompson, 1 Wendell, 43; Frost v. Brisbin, 19 id., 11; Haggart v. Morgan, 5 N. Y., 422; Bell v. Pierce, 51 id., 12. The question here has relation to the legal residence of the parties. And within the meaning of the statute providing for actions of this character, the place of which the parties are residents is that of their permanent abode, which may be distinguished from their place of temporary residence. The defendant was not without his domicil, and unless another was acquired by him elsewhere, he retained his domicil of origin. And to effect a change of it the fact and intent must concur. Crawford v. Wilson, 4 Barb., 504; Dupuy v. Wurtz, 53 N. Y., 556; Gilman v. Gilman, 52 Me., 165; 83 Am. Dec., 502.

In legal phraseology residence is synonymous with inhabitancy or domicil. And it is in this sense that the term resident is used in the provisions of the Code before referred to, and persons having that relation to this state are its citizens and residents, and for the purposes of the relief like that in view in this action, they are subject to the jurisdiction of its courts. The purposes for which residence is not determined by domicil are those within the contemplation of some statutes. • Such application has been made of statutes providing for levy of attachments on the property of non-residents, and the assessment of taxes on the personal property of residents.- Then and for the purpose of such remedy and taxation the place where the party actually resides may (as has been held), be treated as that of his residence although his domicil is elsewhere. Here there was some evidence that the defendant’s domicile remained in this state, and- consequently the conclusion that he was á resident of it when the action was commenced is not reviewable on this appeal. In Harral v. Harral, 39 N. J. Eq., 279 ; 51 Am. Rep., 17, there was no evidence to repel the presumption that when the testator went to Paris and made that his place of residence he did not intend to change his domicil to France. His act and intent as so manifested and unqualified, indicated his purpose to do so, and such may have been the apparent relation of the defendant to Germany, if nothing had appeared to the contrary.

The defendant was at liberty to allege in his answer facts by way of counterclaim and seek affirmative relief against the plaintiff for separation or dissolution of his marriage with her. Code, § 1770. He did for the purpose of seeking a divorce from her allege that she had committed adultery with one Baron Heino von Geyso at Eger in Bohemia, at Dresden in Saxony and at other places in Europe, which she by her reply denied. At the time of the trial the statute provided that “A husband or wife is not competent, to testify against the other upon the trial of an action * * * founded upon an allegation of adultery, except to prove the marriage.” Code, § 831. The plaintiff was then incompetent to testify upon that issue. Her action for separation, however, was not founded upon any allegation of adultery, and she was competent to testify in support of her alleged cause of action and to any matter essentially within the issue tendered by the allegations of her complaint. As part of her cause of action, the plaintiff alleged that after she left Dresden the defendant declared his purpose not to permit the plaintiff to return to him if she wished so to do ; and that to justify his actiou towards her he had undertaken to impeach her chastity by charging that in 1880 and 1881 she was guilty of adultery, and that the accusation so made by him became circulated amongst her friends at Dresden; and that such charge was wholly without foundation and was made by the defendant for the purpose of injuring the plaintiff. In his answer the defendant denied those allegations. After the subject of the alleged charges so made by the defendant against the chastity of the plaintiff had been referred to on the trial, and evidence had been given on her part to the effect that the defendant had made to others the accusation that the plaintiff had committed adultery with Baron von Geyso, and before the defendant had given evidence tending to support the charge, the plaintiff testified that during the period of time within which it was charged by the defendant that she met yon Geyso at Eger she visited that place on one occasion only, when she drove there from Eranzensbad, where she was then staying, and returned to the latter place in one afternoon, and in answer to a general question. she testified that there never had been, arly impropriety of any kind betweeh Baron von Geyso and herself. Exception was taken by the defendant’s counsel to this evidence, on the ground that the plaintiff was incompetent to testify on that subject. And after the evidence had been given on the part óf thé defendant tending to support the charge of adultery, thé .plaintiff was recalled as a witness in her own behalf and asked this question by her counsel: I asked you, before the examination .of the Eger witnesses, whether you were at Eger under the circumstances stated, and you said no; do you still stand by that testimony ? ” To which, aftér objection and ruling were made, she answered: “ I do,” and exception was taken.

As has been already observed, the accusation of unchastity of the plaintiff made by the defendant was a subject of her complaint and of proof in the action. And the defendant could not by setting up a counterclaim founded upon the charge of adultery, deny to the plaintiff the right to testify on that subject, so far as it was relevant to the matter of her alleged cause of action, although it was not competent for her to testify to like matter upon the issue arising out of the. alleged counterclaim. The charge made and reported by the defendant was a serious one, and if maliciously made was properly the subject of complaint and proof by the plaintiff as auxiliary to the other matters alleged by her in support of the cause for separation founded upon the charge of -cruel and inhuman treatment. Whispell v. Whispell, 4 Barb., 217; Kennedy v. Kennedy, 73 N. Y., 369. And although such accusation was made by the defendant after the plaintiff left him it, if made without any reasonable cause, might furnish Some evidence legitimately bearing upon his feeling towards the plaintiff and thus characterize somewhat his treatment of her as she represented .it while she remained with him. Whether the evidence as a whole was sufficient to justify the relief she sought in the fiction was for the court to determine after the close of the evidence. And until then the court could not properly determine what weight any particular evidence might be entitled to. It was sufficient for the purposes of its admissibility that it niay have hfid some bearing upon the issue presented for trial either directly or in impairing the weight of any evidence given against her upon that issue. And in that view it was unimportant whether it was introduced before or after the defendant had put in his evidence tending to support his alleged counterclaim. While the testimony referred to of the plaintiff was not admissible upon thé Counterclaim, it cannot well be said that it was not so as befiring on the question of the defendant’s good faith in making the accusation against her in the action she was prosecuting, and as to that and for that purpose only it must be deemed to have been received and considered. The court finally concluded that the defendant had information which induced him to and he did believe when he made the charge of unchastity of the plaintiff that it was well founded, and thus relieved him from the imputation of maliciously making it. There was evidence tending to support that view of the court, .and whatever force may have otherwise been given to the evidence upon that subject or to which it would have been entitled is not a question now for consideration. The reception of the evidence of the plaintiff was not error.

The defendant’s counsel offered in evidence what purported to be a judgment of the rojal circuit court, second civil division, in Dresden, Germany, in which the defendant here was plaintiff and this plaintiff was defendant, granting on behalf of the former a divorce in July, 1883, and to the ruling of the court excluding it exception was taken. It may be assumed for the purposes of the question that the proceeding or action was instituted and conducted according to the law of Germany, and in that view if their domicil was there the court had jurisdiction, although the defendant in it was then absent from the empire and did not in any manner appear in the action or proceeding. In such case a party whose domicil is in a country is subject to its laws, .and jurisdiction of her person as well ás of the subject-matter may be acquired by the court by means of substituted service in the manner provided, if provision for such purpose is made by its laws, although the party sought to be charged by an action brought against him is then absent from the country and cannot be personally served with process within it. Hunt v. Hunt, 72 N. Y., 217; Huntley v. Baker, 33 Hun, 578, and cases there cited. But a court has no extra territorial jurisdiction, and a person not domiciled in the state or country cannot be charged in personam, by adjudication there unless personally served with notice or process within it, or voluntarily submits himself to the jurisdiction of its court by appearing in some manner in the action or proceeding soúght to be instituted against him. People v. Baker, 76 N. Y., 78; Dunn v. Dunn, 4 Paige, 425 ; Ableman v. Booth, 21 How., U. S., 506; Bischoff v. Wethered, 9 Wall., 812; Ralston's Appeal, 93 Penn. St., 133.

At the time the suit was commenced the plaintiff was in Hew York. There was no personal service of any process upon her in Germany, and the fact appears by the record that she did not appear in that suit. Assuming that the plaintiff’s domicil was not in that country at the time the suit there was instituted, the court had no jurisdiction of her person, and the judgment as against her was a nullity. It is unnecessary to consider further the record of the judgment or the manner of its authentication, or how her relation to that country was affected by the continued residence of her husband in Germany, since the trial court found that the parties were residents of the state of Hew York. Upon that question the record referred to could have no bearing or relevancy, and, therefore, it was entitled to no consideration as evidence for any purpose. If the court had found the fact otherwise, the complaint in this action would necessarily have been dismissed.

Attention has been given to all the exceptions, and none of them seem to have been well taken.

The judgment should be affirmed.

Judgment affirmed, with costs in favor of plaintiff.

All concur, except Follett, Ch. J., in result.  