First Department, June, 1920.

[Vol. 192. "IX. That this plaintiff was honorably discharged from the army of the United States, and returned to his home on or about the 4th day of June, 1919, and immediately thereafter notified the defendant of his return, and that he was ready to at once resume the duties of sales manager under the terms of his contract as provided in said contract Exhibit 'A,' [the second agreement] and thereupon defendant requested this plaintiff to postpone the resumption of his employment pursuant to the contract, Exhibit A,' until June 30th, 1919, at which time he should resume pursuant thereto his employment under the terms provided in the contract herein set forth in paragraph II of this complaint and in Exhibit 'A,' on and after July 1st, 1919, to which said request this plaintiff consented.

"X. That this plaintiff immediately leased an office in the same premises in which this plaintiff had theretofore carried on the business of sales manager of said Day-Elder Motors Corporation, and notified said defendant thereof, and requested defendant to forward to him as theretofore, stationery and advertising matter for the purpose of carrying out his part of the terms of the aforesaid contracts, and immediately notified his salesmen and his stenographer who had remained with defendant as hereinafter set forth, to return to their former position on July 1st, 1919."

"XII. That on or about the 11th day of June, 1919, this plaintiff pursuant to the provisions of the contract, appointed and procured a sales agent for said trucks at Helena, Montana, and reported same to the defendant corporation, which contract or appointment was forwarded to, and was accepted by defendant.

"XIII. That thereafter, and on or about the 10th day of July, 1919, said defendant notified this plaintiff that he was suspended as sales manager of said defendant, at which time this plaintiff notified said defendant that he was, and always had been ready and willing to carry out the terms of his said contracts and Exhibit 'A' upon his part to be performed, and insisted that defendant should carry out the said contract upon its part."

It is then set forth that on July 22, 1919, defendant wrongfully and without just cause notified plaintiff that it refused

App. Div.]

First Department, June, 1920.

and ever since has refused to carry out the terms and conditions of the " said contracts upon its part to be performed, and has refused to permit this plaintiff to perform said contract Exhibit A."

Plaintiff nowhere alleges that the original contract of. December 26, 1916, was made in the State of New York, which in my opinion he was required to do to bring the case within the provisions of the statute. The affidavit of the vice-president and treasurer of defendant shows that the contract was negotiated, made and executed in the State of New Jersey. There is no denial of this statement.

I am convinced that whatever breach of contract is set forth in the complaint herein is a breach of the contract of December 26, 1916. While defendant is alleged to have declared that contract canceled, there is no claim that the cancellation ever was accepted by plaintiff or recognized as being effective for any purpose. On the contrary, by the second agreement the notice of cancellation was withdrawn and it was mutually agreed that the original contract was still in full force and effect and should so remain. The only effect of the second agreement was to suspend or modify the operation of the original agreement in certain specified particulars until plaintiff ceased to be in the army. It was not a new, distinct and complete contract superseded in the original agreement, but only a temporary and limited agreement to meet a temporary emergency. When plaintiff so ceased to be in the army, the original agreement again became operative, binding and effective in every particular. The date of the happening of this event was June 4, 1919, and thereupon the original agreement at once became operative. At defendant's request, and by mutual agreement, the date of the resumption of plaintiff's employment pursuant to the original agreement was postponed to July 1, 1919. On that date, then, the agreement of December 26, 1916, became completely operative. There is no allegation that defendant then prevented in any way the resumption of the original agreement or then refused to recognize plaintiff as its sales manager, or in any way breached either agreement. The attempted suspension of plaintiff did not occur until July 10, 1919, and defendant's final refusal to carry out its contract

First Department, June, 1920.

[Vol. 192. with him did not take place until July 22, 1919, both events happening after July 1, 1919, when the agreement of December 26, 1918, had become in all respects operative and binding on both parties.

The action being brought for a liability occurring under the agreement made on December 26, 1916, and it not being alleged or proven that such agreement was made in the State of New York while defendant was authorized to do business in this State, but on the contrary it appearing that the contract was made in the State of New Jersey, the requirements of the statute have not been met and service of the summons upon the Secretary of State of New York was not validly made. The motion to set aside the service of the summons should have been granted.

The order appealed from will be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

CLARKE, P. J., LAUGHLIN, PAGE and MERRELL, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

EMANUEL M. KAISER, Respondent, v. EDITH O. KAISER,

Appellant.

First Department, June 11, 1920.

Husband and wife - validity of foreign divorce granted to wife on default on substituted service of summons by publication - right of husband to divorce on remarriage of wife.

A divorce decree granted to the wife by the courts of Pennsylvania on the default of the husband on a substituted service by publication on him in compliance with the laws of that State, the wife then being a bona fide resident of Pennsylvania, will not be recognized in this State where the parties were citizens of this State residing in New York city at the time of the marriage and the husband continued to reside in said city at the time the decree was granted.

Accordingly, the husband is entitled to a divorce in this State where the wife subsequently marries in Pennsylvania, though the marriage there is valid.

App. Div.]

First Department, June, 1920.

APPEAL by the defendant, Edith O. Kaiser, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of August, 1918, upon the decision of the court, rendered after a trial on framed issues at the New York Special Term, dissolving the marriage between the parties and awarding the custody of the child to the plaintiff.

Also an appeal by said defendant from the final judgment of divorce in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of December, 1918.

Louis Marshall, for the appellant.

I. Maurice Wormser of counsel [Max D. Steuer, attorney], for the respondent.

PAGE, J.:

The appeals from the interlocutory and final judgments bring up for consideration the effect of a decree of divorce granted by the Court of Common Pleas of Philadelphia, State of Pennsylvania, obtained by the defendant herein by default. The plaintiff herein was not served with process in the State of Pennsylvania, nor did he appear in the action. Substituted service by publication was made upon him in accordance with the law and practice of the Pennsylvania courts.

Prior to their marriage the plaintiff and defendant were citizens of the State of New York and residents of the city of New York. They were married in the city of New York and continued to reside there until their separation on August 7, 1914. On August 26, 1914, the parties hereto entered into a separation agreement, and thereafter the defendant herein took up her residence in the city of Philadelphia and resided there for one year and three days, and then brought an action for divorce a vinculo upon the ground of cruel and inhuman treatment, and such proceedings were therein had that a final decree was granted on August 7, 1916. On January 3, 1918, the defendant herein was married to Stephen Herz in Philadelphia, Penn., he being a citizen and resident of that State. This action was brought in the Supreme Court of APP. DIV.-VOL. CXCII.

26

First Department, June, 1920.

[Vol. 192.

New York, and the interlocutory and final decrees have been entered after a trial, adjudging the defendant guilty of adultery by reason of her cohabitation with Stephen Herz.

The plaintiff's attorney conceded upon the trial, and the finding of the Court of Common Pleas was that the plaintiff in that action was at the time the action was commenced a bona fide resident of the State of Pennsylvania; this might otherwise have been questioned. (Barber v. Barber, 21 How. [U. S.] 582, 592 et seq.) The constructive service of process pursuant to the laws of the State of Pennsylvania conferred jurisdiction on the court of that State to grant the decree of divorce at the instance of the wife who was then lawfully domiciled within that State, and the decree became valid and binding within that State. Although it is not valid and binding in other States, as a matter of right, under the full faith and credit clause of the Federal Constitution (Art. 4, § 1) it may be recognized in other States by comity. This State has consistently refused to recognize such a decree as binding upon a party who, at the time of the action in a foreign State, was a citizen of this State, on the ground that it was contrary to our public policy (See cases collected in Berney v. Adriance, 157 App. Div. 628, 630), and this right to refuse to give recognition has been sustained by the United States Supreme Court. (Atherton v. Atherton, 181 U. S. 155; Haddock v. Haddock, 201 id. 562; Thompson v. Thompson, 226 id. 551, 561.) We have also held that where neither of the parties to the action was a citizen of this State at the time the action was brought in the foreign State, such a judgment would be recognized as binding because this rule of public policy is enforcible only for the protection of the citizens of this State. (Kaufman v. Kaufman, 177 App. Div. 162; Schenker v. Schenker, 181 id. 621; affd., 228 N. Y. 600; Ball v. Cross, 190 App. Div. 711; Hubbard v. Hubbard, 228 N. Y. 81.) The learned counsel for the appellant construes these decisions as showing the intent of the courts to depart from the policy of the earlier cases. These later cases were not in hostility to, but in harmony with, the earlier cases and did not show any intention of changing the policy of this State. In this case the marriage which the Pennsylvania court dissolved was solemnized in this State, and this State was the only matrimonial domicile