Opinion
May 8, 1907
John P. Wheeler [ D.L. Maxfield of counsel], for the appellant.
Hinman, Howard Kattell [ Thomas B. Kattell of counsel], for the respondent.
In 1871 the plaintiff obtained a judgment of divorce in the Supreme Court in this State, the summons having been served upon the defendant by publication only, which judgment awarded to her forty-three dollars costs and fifteen dollars per month alimony for the term of ten years. The plaintiff, who has since married, brings this action against the defendant by attaching certain property belonging to him in this State, and seeks to recover such costs and alimony. The complaint was dismissed by the trial court upon the ground that the judgment so far as it awarded costs and alimony was void and not binding upon the defendant, he not having been served with the summons and not having appeared in that action.
This question has been decided adversely to the plaintiff in Rigney v. Rigney ( 127 N.Y. 408), and in Burch v. Burch ( 116 App. Div. 865). Rigney v. Rigney was reversed sub nom. Laing v. Rigney by the Supreme Court of the United States in 160 United States, 531, but upon other grounds, and the decision of that case by the Court of Appeals stands as the law of the State that a judgment for alimony and costs cannot be awarded against a defendant in an action for divorce where he was not served with summons and did not appear in the action. The judgment is, therefore, affirmed, with costs.
All concurred; SEWELL, J., not sitting.
Judgment affirmed, with costs.