Roblin agt. Long. the foreign court is conclusive and bars a defense in this state (Lazier agt. Wescott, 26 N. Y. R., 146; Kerr agt. Kerr, 41 N. Y. R., 272). II. The first count in the answer is bad. The rule is well settled in this state, that where an action is brought to enforce a foreign judgment or decree, and defendant's answer is a general denial "on information and belief" merely, the same will be stricken out, on motion, as sham and frivolous (Beebee agt. Marvin, 17 Abb., 194; Richardson agt. Wilton, 4 Sandf., 708). III. The courts of this state possess full power and authority to enforce the judgments and decrees of the courts of foreign states and countries. By comity of nations, where jurisdiction is obtained of the person of defendant, this rule will be enforced to the extent of compelling defendant to convey lands which are beyond and not within the jurisdiction of this court. "When the defendant in the action is liable to the plaintiff, either in consequence of contract, or as trustee, or as holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance that a question of title may be involved in the inquiry and may even constitute the essential point on which the case depends, does not seem sufficient to arrest jurisdiction " (Massie agt. Watts, 6 Cranch, 148). In McDowell agt. Read (3 Louisiana Annual R., 391) the supreme court of that state held, that where a court is called upon to enforce a right, it may avail itself of its jurisdiction over the person to do justice relative to a subject-matter beyond its jurisdiction, though lands be affected by the decree (Gardner agt. Ogden, 22 N. Y. R., 327; Dobson agt. Pearce, 12 N. Y. R., 156; Earl of Derby agt. Duke of Athol, 1 Ves. Sr., 202; Lord Baltimore agt. William Penn, 1 Ves. Sr., 444; Lord Cranstown agt. Johnson, 3 Ves. Jr., 170). The second count of the answer is clearly sham and frivolous and should be stricken out or overruled, and judgment ordered accordingly (Old Code, sec. 247; Code Civ. Pro., sec. 537). Roblin agt. Long. Watson M. Rogers, for defendant. I. The answer sets up two defenses: (1.) A denial of any knowledge or information sufficient to form a belief as to all the allegations of the complaint. (2.) An allegation that the matter in suit pertains to real estate situate in the Dominion of Canada, of which the supreme court of this state has no jurisdiction. (1.) "The court has no power to strike out as sham an answer consisting of a general denial of the material allegations of the complaint" (45 N. Y., 281); nor one which denies any knowledge or information sufficient to form a belief as to the truth of any of the allegations of the complaint (Grocers' Bank agt. O'Rorke, 6 Hun, 18). Each form of the denial is expressly authorized by the Code (Code, sec. 500, sub. 1; Steele agt. Burk, 5 Abb. N. C., 88; Metzey agt. Burwell, 5 Abb. N. C., 90). An answer putting in issue any allegation is not "sham" (14 Barba, 393). (2.) The second answer is neither sham or frivolous. It alleges want of jurisdiction in the courts of this state to enforce the decree of a foreign court, with reference to real estate situate in a foreign country. "A frivolous answer is one so clearly and palpably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and indicative of bad faith in the pleader, "upon a bare inspection” (Per Allen, J., 53 N. Y., 499; Strong agt. Spol and others, 12 How. Pr., 544). It has been held by the court of appeals that the courts of this state have no power to entertain an action for the conversion of telegraph poles (held to be real property) in the state of New Jersey (10 Weekly Dig., 113). "It is true that foreign courts may decree the performance of contracts relating to land, without their jurisdiction” (Dilken agt. Watkins, 3 Sandf. Chan. R., 185), "but such a decree can only be enforced against the person of the defendant in the foreign court of the state where the property is situated" (Davis agt. Headly, 22 N. J. Eq., 115, cited in 4 Wait's A. and D., 191). The complaint in this case prays that a decree of a Canada court, of and concerning real property situate in Roblin agt. Long. that country, be enforced against the person of the defendant here. It certainly is a debatable question whether that can be done, and where it becomes debatable the answer is not "frivolous." II. The motion is an entire one, and if one defense is good the motion will be denied (53 N. Y., 497, supra). III. The motion must stand or fall on the pleadings alone (Cornwell agt. Burke, 14 Barb., 393). (a) Though the motion purports to be founded on a judgment record, no copy has been served and it cannot be considered here (6 How., 182). MULLIN, J. — Plaintiff moves for judgment in this case on the ground that defendant's answer is sham and frivolous. This practice was permissible under section 247, Code of Procedure. That section provides, that where "a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly." This practice is not changed, but remains the same under section 537 of the Code of Civil Procedure as under section 247 of the old Code. This action is brought to enforce the judgment and decree of the court of chancery of the Province of Ontario and Dominion of Canada. The complaint in this action, which is verified, contains a certified copy of the chancery decree; by this record it appears that the defendant was personally served with process; that he appeared by attorney in said court and duly answered; that a trial was there had on the merits, and that as the result of such trial a judgment was rendered against the defendant. The defendant now comes into this court and serves an answer, in which he interposes two defenses : 1. He denies any knowledge or information sufficient to form a belief as to all the allegations of the complaint, except the allegation of defendant's omission and refusal to pay the Roblin agt. Long. sum of $195.95, that being the amount of costs entered in the foreign decree. 2. That the matter in suit pertains to real estate situate in ' the Dominion of Canada, and that the supreme court of this state has no jurisdiction to enforce such judgment and decree. The first count of defendant's answer is manifestly sham and should be stricken out. In this class of cases, brought in the courts of this state to enforce the judgments and decrees of the courts of a foreign state or country, an answer denying any knowledge or information sufficient to form a belief as to all the material allegations of the complaint, will be stricken out as sham, where the defendant appeared in the original action. The defendant is bound to know whether in such a case process was served on him, and whether he appeared and answered, and whether judgment was rendered against him on the trial. These are facts which the defendant is presumed to know, and his denial must therefore be positive and unequivocal, and not upon information and belief. Such a denial is equivocal and presumptively interposed in bad faith. The second answer is clearly frivolous. The law is well settled in this country that courts of justice in one state will, out of comity, enforce the laws of another state or country, where by such enforcement they will not violate their own laws or inflict injury upon some one of their own citizens. This court having acquired jurisdiction of the person of the defendant, it possesses full power to enforce the judgment and decree of the chancery court of Canada, to the extent of compelling defendant to convey the lands mentioned in the complaint though the same are situated in the Province of Canada and without the jurisdiction of this court. The defendant's answer is therefore stricken out as sham and frivolous, and judgment is ordered for the plaintiff for the relief demanded in the complaint with ten dollars costs of this motion Peck agt. Peck. N. Y. COMMON PLEAS. SUSAN PECK agt. ANDREW PECK. Marriage Divorce - Prohibition in divorce decrees - Laws of 1879, chapter 321, section 49— Rights under, saved by repealing act of 1880 — Code of Civil Procedure, section 1761. The right of a defendant in a divorce suit, the judgment in which prohibited him from marrying again, to make application under section 49 of the Laws of 1879, for a modification of such judgment, is saved by the repealing act of 1880; and section 1761 of the Code of Civil Procedure, containing the disqualification upon re-marriage never became operative law, except as modified by said repealing act. Special Term, January, 1881. H. F. Farnsworth, for motion. LARREMORE, J.-On April 10, 1874, a decree of absolute divorce was granted in this action in plaintiff's favor, in pursuance of article 3, section 1, chapter 8, part 2 of the Revised Statutes, whereby the defendant was prohibited from marrying again during the life of the plaintiff. She remarried on May 10, 1878, and is now living in the marriage relation in the city of New York. By chapter 321 of the Laws of 1879, section 49, the statute above referred to was amended by allowing a defendant found guilty of adultery in a divorce suit, after the expiration of five years from the rendition of judgment therein and remarriage of the plaintiff, to make application to the court for a modification of such judgment upon satisfactory proof of the facts above stated, and also of the fact of defendant's good conduct since judgment was rendered. This act took effect immediately. Such application and proofs have been produced herein, and it would appear that defendant is entitled to the relief sought. |
