New York County NyArchives Court.....Feyh, Mary, Matter Of 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 12:03 am

Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

In the Matter of the Judicial Settlement of the Accounts of RICHARD J. 
MORRISSON, Public Administrator and Administrator of the Goods, Chattels and 
Credits of MARY E. FEYH, Deceased.

Judgment of divorce entered in another State upon service by publication on a 
resident of this State — validity thereof.

Henry Feyh, a resident of Ohio, having married in that State, came with his 
wife, Mary E. Feyh, to the State of New York, without the intention of acquiring 
a residence in the latter State, and resided there some six years, from 1869 to 
1875, when he separated from his wife, who continued to reside, until her death 
in 1885, in New York, where she acquired a domicile; while her husband, shortly 
after such separation from his wife, was married to one Adelaide Nelson in New 
York, with whom he lived, residing in various places in this country and Russia, 
until his death in 1885.

In 1881 he brought an action in the State of Ohio for a divorce from his first 
wife, alleging in the petition in such action that he was a resident of Ohio for 
the year last past and more; that he was a bona fide resident of the county in 
which the action was brought; that his wife had been unfaithful at divers times 
and places, having committed adultery both in the State of New York and the 
State of Ohio, and gave notice of the pendency of that petition, in accordance 
with the laws of the State of Ohio, by publication thereof in a newspaper 
printed in Franklin county, in which the action was brought, and on September 
12, 1881, obtained a judgment of divorce adjudging that the defendant therein 
had committed adultery while the plaintiff and defendant therein were residents 
of Ohio; after which judgment he again married the aforesaid Adelaide Nelson.

Upon an appeal by the next of kin of Mary E. Feyh, deceased, from that part of a 
decree of the surrogate of the county of New York, which awarded distribution of 
her estate among the legal representatives of Henry Feyh:

Held, that the decree of divorce obtained in the court of Ohio was valid.

That it has not as yet been decided in this State, that where a person is 
domiciled in another State, has married in that other State, his wife has 
committed adultery there, and an action for divorce has been begun and a decree 
rendered in that other State annulling the marriage because of this adultery, 
that such decree is void in this State because the wife, who has, after the 
separation, made a domicile within this State, has been served by publication.

That as in the decree it was adjudged, that while the plaintiff and defendant 
were residents of the State of Ohio the defendant had committed adultery, and as 
the court had the right to so adjudicate upon this evidence, and under the laws 
of our State this would have been sufficient to procure a decree of divorce, the 
court in recognizing the Ohio decree did not run counter to our own public 
policy or to abstract justice or pure morals, but simply recognized the 
principle of comity between States and gave due effect to the judgment of a 
sister State.

People v. Baker (76 N. Y., 78); O'Dea v. O'Dea (101 id., 23); Cross v. Cross 
(108 id., 628) distinguished.

That as Henry Feyh had invoked the jurisdiction of the court of Ohio and 
submitted himself thereto, and could not now be heard to question such 
jurisdiction, the claimants in this proceeding, who occupied precisely the same 
position that Feyh would have occupied had he been living, could not attack the 
judgment.

Hewitt v. Northrup (75 N. Y., 510) followed.

Appeal by the next of kin of Mary E. Feyh, deceased, from that part of the 
decree of the surrogate of the county of New York, of March 19, 1888, which 
confirmed the report of a referee, and awarding distribution of the estate of 
Mary E. Feyh among the legal representatives of the husband of the deceased.

D. Wilcox, for the special guardian.

Alexis C. Smith, for the appellant Chorpenning.

James L. Williams, for the administrators of Henry Feyh, deceased, respondents.

Van Brunt, P. J.:

In December, 1861, the decedent, Mary E. Chorpenning, married Henry Feyh at 
Montgomery, Franklin county, Ohio. They resided in Columbus, Ohio, until the 
year 1869, when they came to the city of New York, and resided here until April, 
1875. During this time, in 1873 or 1874, it is in evidence that Henry Feyh 
stated that he did not claim this as a residence; that his father and mother 
lived in Columbus, and that he always claimed that as his home.

In April, 1875, Henry Feyh left his wife because of her infidelity, and they 
never again cohabited with each other as man and wife; Mary Ellen continuing to 
reside in New York until her death, which happened on the 31st of March, 1885. 
She died intestate, and left no issue or lineal descendants. From 1875 to the 
time of his death, which took place on May, 1885, Henry Feyh resided in various 
places, namely, Philadelphia, New York, Russia, Jersey City, Ohio, Hartford, 
Norristown, and Boston where he died. In October, 1875, he married in New York a 
woman named Adelaide Nelson, and from that time they lived together as husband 
and wife. During all this time he was a member of a lodge of Odd Fellows at 
Columbus, Ohio, and kept up his standing therein. On the 10th of March, 1881, 
Henry Feyh began an action in the Court of Common Pleas, in the county of 
Franklin, Ohio, for a divorce from Mary Ellen Feyh on account of her adultery, 
committed both in Ohio and in New York. In the petition, by which the action was 
begun, he alleged that he had been a resident of Ohio for a year last past and 
more; that he was a bona fide resident of the county aforesaid, and that Mary 
Ellen had been guilty of adultery at divers times and places, some of said 
adulterous acts being alleged to have been committed in Ohio and some in New 
York. Notice of the pendency of this petition was given in accordance with the 
laws of Ohio, by publication in a newspaper; printed in Franklin county. No 
notice or summons in the action was served upon her; and she did not appear 
therein; and had no notice of the action or proceedings therein, otherwise than 
by the publication aforesaid. On the 12th of September, 1881, judgment was 
rendered in said action in favor of Henry Feyh, upon the petition of the 
plaintiff, the exhibits and the testimony of witnesses sworn and examined in 
open court, that the said defendant was duly notified of the pendency of the 
suit, and whereby it was also adjudged and decreed that the plaintiff and 
defendant were married, as set out in the petition, and that the plaintiff had 
discharged all and singular his marital duties towards the defendant; and that 
the said defendant had been guilty of the crime of adultery, as alleged in the 
petition; and it was further adjudged that the marital relations theretofore 
existing between the plaintiff and the defendant should be set aside, annulled 
and stand for naught, and the plaintiff released from the obligations of said 
marriage. The requirements of the laws of Ohio were, in all respects, complied 
with, and the judgment remains in full force, and there is no allegation, proof 
or finding that the judgment was fraudulent and collusive, or that any fact 
necessary to sustain the judgment, was not true and not proven upon the trial. 
After the entry of the judgment of divorce, and upon the 15th of August, 1882, 
Henry Feyh was again married to the foresaid Adelaide Nelson by a magistrate in 
Philadelphia, Pa., and they continued to cohabit as husband and wife until the 
death Henry, leaving three children. Mary Ellen having died intestate and 
childless in New York on the 31st of March, 1885, and having left personal 
estate, all of which she accumulated after the divorce, letters of 
administration upon her estate were granted to the public administrator. Henry 
Feyh never applied for letters of administration, and died intestate at Boston, 
May 10, 1885, and letters of administration upon his estate were duly granted.

It is now claimed in this proceeding that the divorce proceedings in Ohio were 
absolutely void, and that at the time of his death Henry Feyh was the husband of 
Mary Ellen, and, therefore, entitled to the possession of her personal estate. 
In the disposition of this question we do not think it necessary to discuss, in 
detail, the number of cases which have been cited as authorities, both by the 
respondents and the appellants. It will be found upon an examination of these 
cases that they are all distinguishable in very important particulars from the 
case at bar.

It has not as yet been decided in this State that where a person is domiciled in 
another State, has married in that other State, his wife has committed adultery 
there, and an action for divorce has been begun and a decree rendered in that 
other State because of this adultery, annulling the marriage, that such decree 
is void in this State, because after the separation the wife has made her 
domicile within this State and has been served by publication. It is true that 
there have been decisions holding decrees of divorce in foreign States to be 
null and void where the jurisdiction of the State has been evidently sought for 
the purpose of evading the laws of this State, unless both parties have 
submitted to the jurisdiction of the court, or where a divorce has been granted 
upon grounds not recognized by the law of this State, and jurisdiction within 
that State has not been obtained of the defendant. The case which goes the 
furthest in this direction is that of the People v. Baker (76 N. Y., 78). In 
that case it was held that where an action for divorce was commenced in the 
State of Ohio to dissolve a marriage upon the ground of gross neglect of duty, 
and the proof showed service of process upon the defendant by publication, the 
defendant residing within this State, a decree rendered in such action was null 
and void. The court, in its opinion, stated: "It is urged upon us that our State 
cannot, with good grace, hold invalid this judgment of a court of Ohio when our 
own Code provided at the time of the rendition of it for the giving of judgment 
of divorce against a non-resident by like substituted service. It is true that 
until the new Code of Procedure such had been the case. This is but to say that, 
on the principle of the comity of States, we should give effect to this 
judgment. But this principle is not applied when the laws and judicial acts of 
another State are contrary to our own public policy or to abstract justice or 
pure morals. The policy of this State always has been that there may of right be 
but one sufficient cause for a divorce a vinculo, and that policy has been 
upheld with strenuous effort against persistent struggles of individuals to 
vitiate and change it." And it was because this principle had been violated that 
there was an attempt to change the status of a citizen of the State of New York, 
for a cause not recognized as sufficient by the laws of this State, that the 
decree in the case of Baker was pronounced null and void.

To the same effect was the case of O'Dea v. O'Dea (101 N. Y., 23) and Cross v. 
Cross (108 id., 628). But it has not yet been decided, as already stated, that 
where, under precisely the same circumstances and under the same proof, which we 
must assume was given in Ohio, a decree of divorce, a vinculo, would be granted 
by the courts of this State, we will not recognize such decree when granted by 
the laws of a sister State. By our own laws a husband or wife may maintain an 
action against the other party to a marriage, to procure a judgment of divorce, 
by reason of the defendant's adultery, where both the parties were residents of 
the State when the offense was committed, or where the offense was committed 
within the State, and the injured party, when the action was commenced, was a 
resident of this State.

By the allegations in the decree, which are found to be true by the court of 
Ohio, which court had the right to adjudicate upon this question, having 
jurisdiction of the subject-matter, it was adjudged that while the plaintiff and 
defendant were residents of the State of Ohio, the defendant had committed 
adultery. Under our own laws this would have been sufficient to procure a decree 
of divorce, and in recognition of the Ohio decree we do not run counter to our 
own public policy or abstract justice or pure morals, but simply recognize the 
principle of the comity of States and give due effect to the judgment of a 
sister State. By the proof in the case at bar every objection raised in the 
cases cited to the recognition of the decree of the foreign State has been 
obviated. There is not the slightest ground to suppose that recourse was had to 
the jurisdiction of Ohio for the purpose of escaping the laws of this or any 
other State, but, upon the contrary, it appears upon the whole evidence that the 
plaintiff simply resorted to the State of his domicile for the purpose of 
enforcing rights which the infidelity of his wife had given. And it is no answer 
to this proposition to say that, because of his adulteries committed after the 
separation from his wife in consequence of her infidelity, she had a right to 
obstruct him in the procurement of such divorce.

She knew that he was living with the woman that he subsequently made his wife. 
She made no objection thereto and took no action because thereof. She evidently 
did not consider herself injured by reason of that relationship, but recognized 
the right of her husband to leave her because of her infidelity to him. Under 
the evidence in this case in the consideration of this question, it must 
necessarily be conceded that Mary Ellen had acquired a domicile in the State of 
New York. She had separated from her husband; she resided in this State, bought 
real estate here, lived in it and died in it. And it seems to us, under these 
circumstances, we must hold that she had acquired a domicile separate from her 
husband.

It seems also equally apparent that Heny Feyh never lost his domicile in Ohio 
though he lived wherever his work required him to be. The evidence shows that he 
had stated that Ohio was his home. He went there occasionally and kept up his 
connection at home, remaining a member of the lodge of Odd Fellows there, and 
undoubtedly regarding the State of Ohio as his domicile. And this is accentuated 
by the fact that he went to the State of Ohio for the purpose of initiating 
these proceedings, alleging himself to be domiciled there, when, if he had been 
domiciled elsewhere for precisely the same reason, and by going through the same 
proceeding, he might have obtained the same relief. There is no claim whatever 
but that the statements made by him in his affidavit to procure the publication 
of the summons were correct, or that anything was done by him for the purpose of 
avoiding giving notice to the defendant of the proceeding which he proposed to 
institute. It appears, therefore, to us that if ever a judgment is to be 
recognized and given effect to, it must be under circumstances such as have been 
developed in the case at bar.

There is another suggestion, and that is that Henry Feyh, having invoked the 
jurisdiction of the court of Ohio and submitted himself thereto, cannot now be 
heard to question such jurisdiction. And the claimants here occupy precisely the 
same position that Feyh would have occupied had he been living. This position 
does not rest upon the doctrine of estoppel, as such term is ordinarily used, 
but upon a principle which has been repeatedly recognized by the courts, that 
where a party has gone into a court and invoked its jurisdiction, he cannot 
subsequently attack the decree of the court obtained at his instance, because of 
the want of jurisdiction of somebody else. In the case of Hewitt v. Northrup (75 
N. Y., 510) this principle is clearly recognized. In the case at bar, therefore, 
Henry Feyh cannot be heard to claim the nullity of this decree, he having 
invoked the jurisdiction of the court and asked its rendition.

It seems to us, therefore, that so much of the decree as is appealed from should 
be reversed, with costs, and the matter sent back to the surrogate for further 
action.

Brady and Daniels, J J., concurred.

So much of decree as is appealed from reversed, with costs, and the matter sent 
back to the surrogate for further action.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/feyh713gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 17.2 Kb