
    Henry George Dunstan, Resp’t, v. Cecil C. Higgins, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Judgment—Foreign.
    In an action upon a foreign judgment rendered by a court having full jurisdiction of the parties and subject matter, interlocutory orders made by such court cannot be reviewed nor the merits of the original con tro-' versy inquired into.
    
      Appeal from judgment in favor of plaintiff, and from order denying motion for a commission.
    
      É. S. Smith, for app’lt; Ten Eyck & Remington, for resp’t
   Patterson, J.

This action was brought on a judgment recovered .in the supreme court of judicature in England against the defendant, for an alleged balance due on a contract, by which the plaintiff undertook to build a coach of a certain kind for the defendant. There can be no question of proper personal service on, the defendant of the original process by which he was brought, into the English court, for it is virtually admitted in the twenty-second paragraph of the answer. The whole of the present defense seems to be based on a notion that injustice was done the-defendant because the English court would not allow a commission to take testimony in this country as to certain matters affecting the rights of the parties. In the present suit a motion was. also made for a commission to take testimony' as to the merits,, which was denied and the appeal coming on to be heard both from the judgment and order may be disposed of in a few words.

It is perfectly evident that the court in England acquired jurisdiction over the person of the defendant and the subject matter of the action, and that having such jurisdiction it declined to> grant a motion to take testimony on- commission and that thereafter it rendered judgment in due course of law and after issue joined against the defendant. When such a judgment is sued on here it is not for us to review merely interlocutory orders or what may be called matters of procedure, nor to inquire into the merits-of the original controversy, for that would be to destroy the whole-theory upon which judgments of foreign tribunals are made effectual here and reciprocally on which we should expect them to enforce ours in their jurisdiction on the principle of international comity. We, therefore, will not say under such circumstances that if the concrete case were before us we might have-made a different order or reached a different result. The English judgment was rendered after full opportunity to be heard, and if' it is to be enforced at all it must be on the ground that it is a. finality and not open to review and. that the merits of the original controversy are not now in any way before us. The order denying the motion to take testimony on commission was properly made in this action and the judgment appealed from must be-affirmed, with costs.

O’Brien, J., concurs.

Van Brunt, P. J.

The appellant admits that the rule has been settled in this state by the court of appeals in the case of Lazier v. Westcott, 26 N. Y., 146, against her right to supersede the judgment sued upon in the manner proposed, but hopes to-change their view if 'their attention is called to the question again ; we know of no other way in which that can be accomplished, except by an appeal from the judgment of affirmance to be entered herein. We cannot reverse a judgment merely upon such expectation. I, therefore, concur.  