App. Div.]

First Department, May, 1910.

ing state of facts, and that the plaintiff is not entitled to recover from Lipman the commissions prayed for.

It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

INGRAHAM, P. J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.

AIMEE STEINBERGER GUGGENHEIM, Respondent, v. GRAce B. Wahl, Appellant.

Husband and wife

First Department, May 6, 1910.

divorce- foreign decree conflict of laws - injunction suit to enjoin action in foreign State to vacate decree of divorce.

The prosecution of an action brought in a foreign State by a woman to procure a judgment setting aside a judgment of divorce obtained by her against her husband in that State will not be enjoined in a suit brought in this State by a woman whom the divorced husband subsequently married, where she was not a party to the foreign action for divorce, and is not a party to the action sought to be enjoined.

It seems, that if she have any interest in the subject-matter of the foreign action to set aside the divorce, she should ask leave of the foreign tribunal to intervene.

Where a foreign court has jurisdiction of an action for divorce and the defendant, resident of this State, personally appears in the action, the decree is conclusive and binding upon the courts of this State so long as it remains in force. It cannot be attacked collaterally here.

It seems, that if the wife who procured the foreign divorce be entitled under the laws of our State to have it set aside, she must ask that relief in the State in which the judgment was rendered.

DOWLING, J., dissented.

APPEAL by the defendant, Grace B. Wahl, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1910, granting the plaintiff's motion to continue a temporary injunction pendente lite.

First Department, May, 1910.

[Vol. 1£8.

John J. Lordan, for the appellant.

Samuel Untermyer and Abraham Benedict, for the respondent.

MCLAUGHLIN, J.:

The defendant, in November, 1900, married William Guggenheim, from whom, in March, 1901, she obtained a divorce in an action brought for that purpose in the State of Illinois, he personally appearing therein. The judgment also awarded her alimony in lieu of which, shortly after the judgment was rendered, Guggenheim paid to her $150,000. In December, 1901, she married one Wahl, in the city of New York, representing at that time that she was singie and a resident of Chicago. This marriage was subsequently declared illegal and void by the courts of France for reasons which it is unnecessary to specify here. After the defendant had obtained the divorce in Illinois and been paid the sum stated in lieu of the alimony awarded by the judgment, William Guggenheim married the plaintiff in this action and they have one child. After the defendant's marriage to Wahl had been delared illegal and void she began an action in the Supreme Court of this State against Guggenheim for divorce, alleging that he had committed adultery with the present plaintiff. The action was tried upon the merits, the complaint dismissed, and judgment to that effect was affirmed by this court (Guggenheim v. Guggenheim, 135 App. Div. 914). In the meantime the defendant had applied to the Circuit Court of Cook county, Ill., for leave to file a petition in the action in which she had obtained a divorce against Guggenheim to have such judg ment vacated. Her application was denied, and after this court had affirmed the judgment in the action brought by her against Guggenheim in this State she commenced an action in the Circuit Court of Cook county, Ill., in the nature of a bill of review, to set aside the judgment of divorce. Thereupon the plaintiff brought this action to perpetually enjoin the defendant from proceeding in the Illinois action or from questioning, by action or otherwise, in any court, the validity of the Illinois judgment, and she obtained an order practically awarding her such relief during the pendency of the action, from which defendant appeals.

The plaintiff was not a party to the action brought in Illinois, which resulted in the judgment of divorce, nor am I able to see

App. Div.]

First Department, May, 1910.

that she has any legal interest in that judgment.

She is not a party

to the action now pending in the courts of that State, and if she has any interest in the subject-matter thereof, then in a proper proceeding she should apply for leave to intervene to the end that such interest may be protected. If the action were pending in this State, under a recent decision of this court, she would not be permitted to intervene. (Tysen v. Tysen, 137 App. Div. 134.) The defendant personally appeared in the action in which the Illinois judgment was rendered. That court had jurisdiction of the subject-matter of the action, and its judgment is conclusive and binding upon the courts of this State so long as it remains in force. It cannot here be attacked collaterally, nor can its validity be in any way questioned. (Matter of Curtiss, 137 App. Div. 584; France v. France, 79 id. 291.) The courts of Illinois have exclusive jurisdiction over the judgment of divorce, and this being so, the Supreme Court of this State has no jurisdiction, and if it had it would not exercise its equitable powers to enjoin the prosecution of an action pending in the courts of that State to nullify or set the judgment aside. (Joyce Inj. § 544b; Griffith v. Dodgson, 103 App. Div. 542; Edgell v. Clarke, 19 id. 199.)

If defendant is entitled to have the judgment vacated or set aside, under our laws she is obliged to go into the State in which the judgment was rendered. This she has done, and the courts of that State have jurisdiction of the subject-matter of the action which she has brought. "The doctrine," says Chief Justice FULLER in Matter of Chetwood (165 U. S. 443), "is firmly established that where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court." (See, also, Peck v. Jenness, 48 U. S. [7 How.] 612.)

If the parties to this action were the same as the parties to the action now pending in the courts of Illinois, a different question would be presented and the authorities cited by the respondent, or some of them, might be applicable. But whether, in that case, an injunction would be granted during the pendency of the action is a question not before us and concerning which we express no opinion.

If the foregoing views be correct, then it follows that the order

First Department, May, 1910.

[Vol. 138.

appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

INGRAHAM, P. J., CLARKE and Scorr, JJ., concurred; DowLING, J., dissented.

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

LOUISA B. WHITE, Respondent, v. HENRY WHITE, Appellant. First Department, May 6, 1910.

Practice - divorce - reference - refusal to confirm report - new referee should be appointed - motion for new trial.

Where the court refuses to confirm the report of a referee appointed in an action for divorce and orders another reference it should be before another referee. The court on refusing to confirm the report, and sending the matter back, in effect grants a new trial.

Where the court having refused to confirm the report of a referee in an action for divorce refers the case to the same referee, the aggrieved party should not appeal from the order denying the motion to confirm, but should move for a - new trial before another referee.

APPEAL by the defendant, Henry White, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1910, denying the defendant's motion to refer the issues herein to a new referee.

Clarence J. Shearn, for the appellant.

William H. Hamilton, for the respondent.

MCLAUGHLIN, J.:

This was

Action for divorce. After issue had been joined a referee was appointed to hear and determine. He made a report in favor of the plaintiff and her attorney moved to confirm the same. opposed by the defendant's attorney upon the ground, among others, that all of the evidence bearing upon defendant's alleged adultery consisted of depositions taken not by the referee, but by a person

First Department, May, 1910.

App. Div.] designated by him. The court refused to confirm the report and sent the matter back to the referee to again hear and determine. The defendant, by his attorney, opposed sending the matter back to the same referee and by an order to show cause asked that a new referee be appointed. The appeal is from an order denying the motion to appoint a new referee.

When the referee filed his report his duties terminated; he was then functus officio. When the court refused to confirm his report he should have ordered a new trial before another referee. (Code Civ. Proc. 1012; Perkins v. Perkins, 130 App. Div. 193; McCready v. Farmers' L. & T. Co., 79 Hun, 241; Matthews v. Matthews, 53 id. 244; First Nat. Bank of West Troy v. Levy, 41 id. 461.)

The section of the Code of Civil Procedure cited provides that "In a case specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference; and where a reference is granted, the court must designate the referee. If the referee thus designated refuses to serve, or if a new trial of an action tried by a referee so designated is granted, the court must, upon the application of either party, appoint another referee." When the court refused to confirm the report and sent the matter back to the referee to again hear and determine, it was, in effect, granting a new trial, and this the defendant was legally entitled to have before a new referee.

Nor do I think the defendant should have appealed from the order denying the motion to confirm the report and sending the matter back to the referee; on the contrary, he adopted the proper course, viz., moving to have the new trial before another referee to be named by the court.

The order appealed from is, therefore, reversed and the motion granted, without costs to either party.

INGRAHAM, P. J., CLARKE, SCOTT and DowLING, JJ., concurred.

Order reversed and motion granted, without costs.