
    DUNSTAN v. HIGGINS.
    
      N. Y. Supreme Court, General Term, First Department;
    
    
      February, 1892.
    
      Former Adjudication; Foreign Judgment how far conclusivel\ A foreign judgment, rendered by a court having jurisdiction of defendant and the subject matter, cannot be impeached in an action upon it in this State, on the ground that the foreign court unjustly refused to grant a motion to take testimony on. commission.
    Appeal from a judgment entered upon a'verdict in favor of plaintiff and from an order denying defendant’s motion for a commission to take testimony.
    The action was brought by Henry George Dunstan against Cecil Campbell Higgins to recover the amount due on a judgment recovered by plaintiff in the supreme court of judicature of England.
    The further facts are fully stated in the opinion.
    
      Frank Sullivan Smith, for appellant.
    I. Foreign judgments are merely prima facie when brought forward as’a cause of action, and. only conclusive when called in bar. (Citing Phillips v. Hunter, 2 H. Black. 410 ; Woodburne v. Plummer, 1 Barn. & C. 625 ; Walker v. Witter, 1 Doug. 1 ; Butterick v. Allen, 8 Mass. 237; 5 Am. Dec. 105 ; Galbraith v. Neville, 5 East 75 ; Wood v. Gamble, 11 Cush. 8 ; Williams v. Preston, 3 J. J. M. 600 ; 20 Am. Dec. 179; Bigelow on Estoppel, p. 192 ; Story's Conflict of Laws, § 608 ; Bissel v. Briggs, 9 Mass. 461; 6 Am. Dec. 88; Bartlett v. Knight, 1 Mass. 400 ; Jordan v. Robinson, 3 Shepl. 167 ; Pelton v. Platner, 13 Ohio 209; Manning v. Thompson, 17 C. P. [Upper Can.] 606; Burnham v. Webster, 1 W. & M. 172.
    
      II. There is no inflexible rule which compels our courts to adopt the adjudications of the courts of a foreign country, when such adjudications are attacked as having been unjustly obtained (Citing 2 Kent's Com. 120; 3 Woolsey's International Law, § 75 ; 1 Ferguson's International Law, p. 380, § 30 ; 1 Hollock's International Law, p. 197, § 30; Bar's International Law, p. 564 ; Anderson v. Hadden, 33 Hun, 440 ; Croudson v. Leonards, 4 Cranch 434; Lang v. Holbrook, Crabbe, 179; McElmoyne v. Cohen, 13 Pet. 324; De Brimont v. Penniman, 10 Blatchf. 436; Handley v. Donoghue, 116 U. S. 4; Wiggen’s Ferry Co. v. Chi. & A. R. R. Co., 11 Fed. Rep. 383).
    IV. A foreign judgment being only prima facie evidence, is controvertible where defendant alleges matters which would make the enforcement of such foreign judgment inequitable (Citing Hitchcock v. Aikens, 1 Kane R. 460 ; Jackson v. Jackson, 1 Johns. 432 ; Taylor v. Bryden, 8 Id. 172; Pawling v. Bird’s Executors, 13 Id. 205; Pease v. Howard, 14 Id. 127; Vanderheuval v. United States Ins. Co., 2 John. Cases 271 ; 2 Can. 66, 77 ; 2 Kane’s Cases 217). The case of Lazier v. Westcott, (26 N.Y. 146) lays down too broad a rule and should not be followed.
    
      Ten Eyck & Remington, for respondent.
    I. The judgment of a foreign court is conclusive upon the merit and can only be impeached by showing that the court did not have jurisdiction of the person or subject matter of the action; or that the judgment was fraudulently obtained (Citing Lazier v. Westcott, 26 N. Y. 146; Hilton v. Guyott, 42 Fed. Rep. 249 ; Moeschler v. Lochte, 12 N. Y. State Rep. 855 ; Gates v. Preston, 41 N. Y. 113 ; Newton v. Hook, 48 Id. 676 ; Goebel v. Jaffa, 111 Id. 177 ; The Mayor v. Brady, 115 Id. 599).
   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 büild 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, lor it is virtually admitted in the twenty-second paragraph of the answer. The whole of the present defense seems to be based on a motion 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 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 jurisdictions, 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. (concurring).

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.  