Municipal Court Code (Laws 1915, c. 279) § 158, providing for such con- [Ed. Note.-For other cases, see Courts, Dec. Dig. 190.] 2. COURTS 190-MUNICIPAL COURTS-APPEAL-FINAL ORDER. Where an order of the Municipal Court failed to comply with Code Civ. Proc. § 767, in that it contained no recital of the papers used on the motion, either by reference to number or otherwise, reciting that "under the circumstances the plaintiff is entitled to an order granting his prayer," which was for an order vacating and setting aside defendant's notice of appeal, such order was not a final order from which an appeal could be taken. [Ed. Note.-For other cases, see Courts, Dec. Dig. 190.] Action by Abraham Kirschner, an infant, by Sarah Kirschner, his guardian ad litem, against Abbott's Bakeries, Incorporated. On motion by defendant for an order amending a notice of appeal nunc pro tunc and for an order granting a stay pending an appeal. Motion to amend notice of appeal granted, and motion for stay denied. Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ. Walter Jeffreys Carlin, of New York City, for appellant. PER CURIAM. [1] The defendant herein moves for an order amending nunc pro tunc a notice of appeal taken from a judgment entered in the Municipal Court in favor of the plaintiff, by substituting the name "Abbott's Bakeries, Incorporated," instead of the name "Charles E. Abbott," which now appears therein as the name of the defendant. Upon the trial of the action this substitution was made. by consent of the defendant. Plaintiff recovered a judgment, and by inadvertence the defendant's notice of appeal filed with the clerk contained the name of "Charles E. Abbott" as defendant, instead of “Abbott's Bakeries, Incorporated," although correctly reciting the court, the amount of judgment, and date of its entry. The defendant also filed an undertaking correctly describing the judgment and the parties thereto. The plaintiff was in no way misled by this misdescription of the defendant in the notice of appeal, and section 158 of the Municipal Court Code provides for just such contingencies, and gives the appellate court ample power to amend any "defects or omissions * * * necessary to perfect an appeal," etc. The motion in this respect should therefore be granted. [2] The moving papers herein also ask for a stay pending an appeal from an order of the Municipal Court vacating the above-mentioned notice of appeal, and setting aside the undertaking and directing that an execution issue upon the judgment. It appears from the papers used on the motion that, after 20 days had expired from the date of entry of the judgment, the plaintiff moved for an order "directing the clerk of the court to issue an execution upon the judgment heretofore obtained and for an order vacating and setting aside the notice of appeal filed herein and vacating the undertaking on ap For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes peal also filed herein." This motion was contested, and upon the hearing was granted, and what the defendant deems an order was entered, from which it has taken an appeal. A copy of this purported order entered upon the motion is handed up with the motion papers. It fails to comply with section 767 of the Code of Civil Procedure, in that it contains no recital of the papers used upon the motion, either by reference to number or otherwise. That it was not intended as a final order is evidenced by the statement contained therein that "under the circumstances the plaintiff is entitled to an order granting his prayer herein." So far as now appears there is no order from which an appeal can be taken. In view of the amendment to the notice of appeal granted herein, the ground for an entry of an order vacating such notice has been removed, and therefore no order should be entered. Motion to amend the notice of appeal nunc pro tunc granted, and motion for stay denied. Temporary stay vacated. TIEDEMANN v. TIEDEMANN. (Supreme Court, Special Term, New York County. March 11, 1915.) 1. JUDGMENT 822-FOREIGN ENFORCEMENT OF RIGHTS. JUDGMENT-PROCESS-SERVICE-PRIVILEGE Where defendant claimed that the service of process upon him in an action pending in Nevada was made while he was in that state for the purpose of instituting legal proceedings against plaintiff, his privilege of immunity from the service of process under such circumstances was for the Nevada court to decide, and its judgment for plaintiff necessarily imported an adverse ruling upon the claim of immunity and involved a judicial determination of litigated facts upon which its jurisdiction depended, and such privilege could not be asserted as a defense to an action in New York on the Nevada judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1454, 14881490, 1496-1500; Dec. Dig. 822.] 2. PROCESS 125-SERVICE-WAIVER OF PRIVILEGE. The privilege to be immune from the service of process while in a state for the purpose of instituting legal proceedings is waived unless claimed. [Ed. Note.-For other cases, see Process, Cent. Dig. § 153; Dec. Dig. 125.] 3. JUDGMENT 822-ACTIONS ON FOREIGN JUDGMENT ISSUES JURISDICTION. Where a Nevada judgment was rendered against defendant upon the personal service of process and his appearance in the action, whether plaintiff had resided in Nevada for the length of time necessary to give the court jurisdiction of the action under the laws of that state was a matter of fact necessarily decided when jurisdiction was assumed, and could not be litigated in an action in New York on the Nevada judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1454, 14881490, 1496-1500; Dec. Dig. 822.] Action by Gertrude E. Tiedemann against Rudolph Ernest Tiedemann. On demurrer to separate defenses. Demurrer sustained. Order affirmed, 154 N. Y. Supp. 1147. See, also, 156 N. Y. Supp. 111. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes House, Grossman & Vorhaus, of New York City, for plaintiff. Rockwood & Haldane, of New York City, for defendant. ERLANGER, J. The plaintiff sues upon a judgment of the district court of Nevada, and the defendant interposes two separate defenses: First, that he was served with process in Nevada while voluntarily within that state for the sole purpose of instituting certain legal proceedings in his own behalf against this plaintiff; and, second, that the plaintiff had not resided within such state for the period required by its laws, under which the court had assumed jurisdiction of the action. [1, 2] In my opinion each of these defenses is insufficient in substance, and the plaintiff's demurrer should be sustained. The privilege of immunity from personal service of process, upon the facts alleged in the first defense, was for the Nevada court to decide. Unless claimed, the privilege was waived; but the answer avers that it was claimed upon a special appearance to set aside the service. The subsequent rendition of the judgment now in suit necessarily imports an adverse ruling by the Nevada court upon the claim of immunity thus presented; but the ruling involved a judicial determination of litigated facts upon which that court's jurisdiction depended, and the decision cannot be re-examined in an action in this state upon the judgment (Ferguson v. Crawford, 70 N. Y. 253, 265, 26 Am. Rep. 589; O'Donoghue v. Boies, 159 N. Y. 87, 99, 53 N. E. 537), no matter if erroneous (Guggenheim v. Wahl, 203 N. Y. 390, 397, 96 N. E. 726, Ann. Cas. 1913B, 201). Granting that the rule of immunity in question is and should be one of universal application, in furtherance of the administration of justice, the admitted allegations of this defense disclose a situation. in which the foreign court erred in its determination of the facts. We are not advised by this defense as to the character of the proof presented to the court in opposition to this defendant's motion to vacate the service of the summons, and which may have been found acceptable; but there has been an actual determination of a jurisdictional question, involving the presentation of facts in his behalf to the foreign court for the solution of that question, and the inquiry is closed for the purposes of an action upon the judgment. [3] So, too, the second separate defense seeks to draw into question the jurisdiction of the Nevada court upon matters of fact which were necessarily decided when jurisdiction was assumed. This defense proceeds upon an admission of the facts alleged in the complaint, and it thus becomes established that the judgment in suit was rendered "upon the personal service of a summons on the defendant in said court, and upon his appearance herein, and upon a trial duly had." As affecting the court's jurisdiction, the fact of the plaintiff's residence was before that court, and the issue cannot again be litigated here. Guggenheim v. Wahl, supra; Hunt v. Hunt, 72 N. Y. 218, 28 Am. Rep. 129. So far as the defendant attacks the sufficiency of the complaint, my ruling is that the judgment in suit is enforceable, at least as to the alimony directed to be paid; it appearing that the court had jurisdiction of the subject and of the parties, with personal service upon and appearance by the defendant. Whether the plaintiff may succeed as to so much of the judgment as is based upon the Nevada law of community of property is not a question which I am called upon to decide. A cause of action for some relief is set forth, and while the complaint could not be more scientifically drawn to express the identity of this defendant with the defendant to the judgment record, the fact is none the less present by fair intendment. I conclude that the demurrer should be sustained, with costs, with leave to defendant to amend on payment of costs within 20 days. (92 Misc. Rep. 417) TIEDEMANN v. TIEDEMANN. (Supreme Court, Special Term, New York County. November 9, 1915.) DIVORCE 331-ACTIONS ON FOREIGN JUDGMENTS-RELIEF OBTAINABLE. Under the Nevada laws providing for community property, a Nevada decree of divorce, requiring the defendant to account for all community property of plaintiff and defendant, fixed the status of the parties, and in an action in New York on such judgment entitled plaintiff to a decree requiring defendant to so account, since, where a judgment establishes a debt or other obligation against a party, the record is available in other jurisdictions as a foundation for a judgment there. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 841, 842; Dec. Dig. 331.] Action by Gertrude E. Tiedemann against Rudolph Ernest Tiedemann. Judgment for plaintiff. See, also, 154 N. Y. Supp. 1147, and 156 N. Y. Supp. 109. House, Grossman & Vorhaus, of New York City, for plaintiff. NEWBURGER, J. Plaintiff seeks to recover upon a decree of a Nevada court the sum of $4,539.10, principal and interest, conceded by defendant to be unpaid. The question of jurisdiction has been determined both by the Supreme Court of Nevada and our own court. See Tiedemann v. Tiedemann, 35 Nev. 259, 129 Pac. 313, and 36 Nev. 494, 137 Pac. 824; opinion of Mr. Justice Erlanger, 156 N. Y. Supp. 109, affirmed by the Appellate Division June 26, 1915, 154 N. Y. Supp. 1147. Therefore the plaintiff is entitled to recover the amount awarded under the decree, but I am asked to compel the defendant to account "as to all community property belonging to the plaintiff and defendant, wherever situated." It has been repeatedly held in this state that "as to all judgments, if they once and for all establish a debt or other obligation against a party, the record is available in other jurisdictions as a foundation for a judgment there." See France v. France, 79 App. Div. 291, 79 N. Y. Supp. 579, and cases therein cited. The laws of Nevada, providing for community interest, and the decree, providing that defendant account for all community property belonging to plaintiff and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes defendant, wherever situated, fix the status of the parties, and plaintiff is entitled to a decree as prayed for. Settle findings and decree on notice. Defendant may have a stay of 10 days and 30 days to make a case (170 App. Div. 412) LIGHTFOOT v. KANE et al. (Supreme Court, Appellate Division. First Department. December 10, 1915.) WILLS 512-CONSTRUCTION-PERSON ENTITLED. Testatrix provided for division of the rest of her estate into as many shares as there were children living at her death, giving one share to each surviving child. In case any of the children died before her death his lawful issue was to take the share the parent would have taken if living. The will also created a trust for a son for life, with remainder to the issue of any of testatrix's children who "shall have died" before the death of the life tenant. Held, that children of a son who predeceased testatrix took the share the son would have taken if he had survived. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1074, 1075; Dec. Dig. 512.] Appeal from Special Term, New York County. Action by Blanche L. Lightfoot against Matthew A. Kane, individually and as executor, etc., of Bridget C. Kane, deceased, and others. From an order for judgment dismissing the complaint upon the pleadings, and from the judgment, plaintiff appeals. Order and judgment reversed. Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and SMITH, JJ. Joseph Walker Magrath, of New York City, for appellant. John J. Lordan, of New York City, for respondent Thomas F. Kane. Rounds, Schurman & Dwight, of New York City, for respondents Matthew A. Kane and others. Henry S. Cook, of New York City, for respondent Annie F. Garry. Henry L. Schaefer, of New York City, for respondent Rosemary Kane. SMITH, J. Bridget Kane died the 11th of March, 1914, leaving a last will and testament, which is here for construction. The will was executed on the 6th day of July, 1909. On that date there were living three sons and four daughters. Another son, Michael Kane, had died on December 13, 1903, prior to the execution of the will. The plaintiff and the defendant Rosemary Kane are daughters of said Michael Kane, who left no other issue. There is a single question involved in this appeal, arising upon the construction of the fourth clause of Bridget Kane's will. That clause, so far as is relevant, reads as follows: "All the rest, residue and remainder of my estate both real and personal and wheresoever situated, I divide into as many shares or portions as I may have children living at my death and one of such shares or portions I give, devise and bequeath to each of my children surviving at the time of my death. In case any of my children shall dic before me, leaving lawful issue * For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |