N. Y. COURT OF APPEALS. Benedict et al., ex'rs, respts., v. Webb, applt.

Decided March 17, 1885.

Testator left a widow and four children, two of whom were minors. By his will he left his estate to his executors in trust to invest and pay the income to his wife and children until all or the youngest survivor should come of age and then to divide the estate, two-thirds to be divided among the children, the shares of the two daughters to be held in trust for them respectively and the income paid to them during their lives, with power of sale to carry out the trust, etc. One of the daughters was a minor. Held, That the suspension of alienation for two minorities would be equivalent to one for two lives; that the trust for the minor daugh- | ter was lawful, but that for the other daughter was void, it being for three lives.

Plaintiffs, as executors of the will of B., entered into a contract with defendant to sell him certain real estate which belonged to the testator. The defendant claimed that the power of sale contained in the will was not valid. This action was brought to compel a

specific performance of the contract. It appeared that B. died in 1840, leaving him surviving a widow and four children, two of whom were minors. After some legacies he left the residue of his estate to his executors in trust. He directed the net income to be divided and paid to his wife and children and to their issue in case of their death in certain proportions "until all my said children, or the youngest survivor of them, shall have attained the age of twentyone years," at which time his estate should be divided as follows, viz. one-third to be set apart for the use of his widow, the rents, income and profits thereof to be paid to her during her natural life, and the remaining two-thirds to be divided among his children, the shares of his two sons to be paid over to them and the shares of his two daughters to be held in trust, the income to be paid to the daughters during their lives respectively. One of the daughters was a minor. The testator vested in his executors power to sell the real estate "if they should deem it expedient for the purpose making such division as directed, or for carrying into effect all or any other of the purposes and trusts" specified in the will.

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George S. Hamlin, for applt. Samuel Hand, for respts.

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Held, That this action could not be maintained; that the power vested in the executors by the will was dependent upon the validity of the trust created by the will; that as under the will the estate was not to be divided until both

the minor children had attained the age of twenty-one years, the suspension of alienation would be for two minorities, which would be equivalent to two lives; that as to the shares of the two sons which would then vest absolutely the limitation of the trust was lawful, and the trust as to the share of the minor daughter was also lawfully limited, for the reason that her minority and the remainder of her life constituted but one life. As to the share of the other daughter the trust was void, the power of alienation being suspended for three lives, and as to that part of his estate the testator died intestate. 16 Wend., 71; 33 N. Y., 596.

Also held, That as to uphold the trust as to the other children and set it aside as to this one would seriously interfere with the testator's intention that all the children and their issue should share equally in his estate, and produce great injustice, the whole trust should be held void. 17 N. Y., 562; 47 id., 390.

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Judgment of General Term, on submitted case for plaintiffs, reversed.

Opinion by Andrews, J. All concur, except Ruger, Ch. J., Earl and Finch, JJ., dissenting.

PRACTICE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Frances Cornish, respt., v. Sarah Graff, applt.

Decided April, 1885.

When a case is settled and filed after entry of judgment the Judges, Court or Referee

should order it annexed to the judgment roll.

It is the duty of counsel to remain in or be represented in court until the jury is discharged, and they cannot, by withdrawing from court, deprive the court of its power to recall and reinstruct the jury. A failure by the court, in such a case, to send for counsel before reinstructing the jury is not error.

In an action to recover the value of services, where the issue is as to what was the agreed price, evidence of the value of the services is competent as bearing on the probable truth of the claims of the respective parties.

Appeal from judgment in favor of plaintiff entered on verdict, from order denying motion for a new trial and from order striking out exceptions from the case.

Action to recover for services as a nurse between Sept. 1, 1880, and Oct. 19, 1881, alleged to have been worth $10 per week, amounting in the whole to $500, which sum defendant agreed to pay, and it was admitted that $286.44 had been paid.

Answer, general denial; that defendant is a married woman living with her husband and that the services were rendered at the agreed price of $5 per week, and that plaintiff has been fully paid.

After the jury retired defendant's counsel left the court. Before adjournment for the day the jury asked for further instruction. An officer was sent for defendant's counsel, but he could not be found, and thereupon, in his absence, the court further instructed the jury, who brought in a sealed verdict in the morning. After the rendition of the verdict defendant's counsel excepted to the right of the court to further instruct the jury in the absence of counsel, and also to the

substance of the instruction. Both exceptions were allowed by the trial judge who settled the case almost a year after the judgment was entered, but did not order it annexed to the judgment roll.

Afterwards, on motion before another justice, these exceptions were stricken out on the ground that under $ 995 of the Code they could not be taken after the jury had rendered its verdict. On the case as resettled a motion was then made for a new trial, which was denied.

Isaac D. Garfield, for applt. Hancock & Munro, for respt. Held, An appeal from a judgment brings up for review only questions of law which are contained in the judgment roll. Section 1237, Code Civ. Pro., provides that a case settled and on file at the time a judgment is entered shall form a part of the judgment roll. When a case is settled and filed after the entry of judgment the Judge, Referee or Court should order the case annexed to the judgment roll. 30 Hun, 214. In

the case at bar no order was made at the Circuit directing a case to be annexed to the judgment roll after entry and none was made by the judge who settled the case. Both parties desiring a determination of this case on the merits we will decide it, but it must not be regarded as sanctioning this practice.

The appeal from the order striking out the exceptions to the instructions need not be specially considered, for if the court had not the right to instruct the jury in the absence of defendant's coun

sel the point is available without an exception. If the court had the right, but abused it, the point is available on a motion for a new trial, which has been made on a case, and the appeal from the order denying a new trial brings the question before this court. 51 N.Y., 558.

The trial of a case is not concluded until the jury is discharged from its consideration. Code Civ. Pro. § 992. The power of the court to recall and reinstruct the jury has never been judicially doubted in this State. Counsel by purposely or inadvertently withdrawing from the court cannot take away the power, or suspend the right to exercise it until they can be found and brought in if willing to come. It is the duty of counsel engaged in the trial of a case to remain in, or be represented at the court during its sessions until the jury having the case in charge is discharged. 6 Jurist, (Exc.) 133. The failure of counsel to perform their duty does not deprive the court of its power to discharge its duty. The court is not required to send out its officers to invite counsel to attend to their duties and hear additional instructions which the court proposes to give to the jury. Undoubtedly, in most cases, courts will endeavor, as a matter of courtesy, to secure the attendance of counsel before reinstructing a jury, but it is not error if it is not done. 67 How., 65, aff. 34 Hun, 625; 1 Hals., 109; 26 Wis., 295; 7 Am., 81.

Burke v. Webb, 2 W. Dig., 579; Bunn v. Croul, 10 Johns., 239; Taylor v. Betsford, 13 id., 457;

Moody v. Pomeroy, 4 Den., 115; People v. Cassiano, 30 Hun, 388; Redman v. Gulnac, 5 Cal., 148; People v. Trim, 37 id., 274; Campbell v. Beckett, 8 Ohio St., 211; Kirk v. State, 14 id., 512, distinguished.

There is no statute or rule of practice in this State which prohibits the court in civil cases from instructing the jury in the absence of counsel. The power to reinstruct a jury in the absence of counsel may, like other powers, be abused; and if it is the wrong can be corrected on a motion for a new trial. But in this case there was no abuse; the additional instructions were given publicly, during a regular session of the court, and after a prolonged but unavailing search for defendant's counsel by the officers of the court under its direction.

In an action to recover the value of services when the issue is, what was the agreed price, the complaint averring that the services were worth the agreed price, evidence of the value of the services is competent as bearing upon the probable truth of the claims of the respective parties. 41 N. II., 232; 15 Gray, 538; 51 N. Y., 635; 9 Bos., 224; Abb. Trial Ev., 367, 368.

Marsh v. Holbrook, 3 Abb. Ct. App. Dec., 172, distinguished.

That defendant was not injured by the additional instruction that plaintiff was entitled to recover the contract price, whatever the jury found it to be, and that the contract price was either $5 or $10 per week. That was the precise issue.

Vol. 21.-No. 17.

Judgment and orders affirmed, with costs.

Opinion by Follett, J.; Hardin, P.J., and Boardman, J., concur.

JUDGMENT. DIVORCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Wm. Gibson Jones, respt., v. Lula V. Jones, applt.

Decided May, 1885.

When an action of divorce is commenced in another State by a husband or wife resident therein against the other party at the time residing in this State, service of the process of the foreign court in this State upon the defendant will not confer jurisdiction over the latter's person nor authorize a judgment dissolving the marriage which will be effectual or operative beyond the State in whose tribunals it may have been obtained, and the foreign court cannot acquire such jurisdiction by the appearance of the defendant for the purpose of objecting and alleging the want of it, and, if such plea or answer be overruled, he may still contest the merits of the action without depriving himself of the validity of the objection taken to the jurisdiction of the tribunal in proceedings brought for the direct purpose of reviewing and correcting the adverse decision; but, when a husband appears for the above purpose in an action for a divorce brought against him by his wife, and judgment is entered therein affirming the jurisdiction of the court and dissolving the marriage, such judgment will be a bar to an action for divorce brought by him against his wife in this State, and it cannot be impeached for want of jurisdiction collaterally in the latter action even though it may be considered erroneous by the courts of this State.

Appeal from judgment recovered on trial at Special Term.

Plaintiff commenced this action for the purpose of obtaining a divorce from defendant. Defendant appeared and answered,

and, subsequent thereto, acquired a residence in the State of Texas, where she commenced proceedings to obtain a divorce from plaintiff. Plaintiff was served in the city of New York with a citation issued by the Texas court in said proceedings, and subsequently appeared therein and filed an answer, first, alleging want of jurisdiction on the part of the court, and afterwards presenting his defense to her action on the merits. The issue thus joined came on for trial, and a judgment was rendered affirming the jurisdiction of the court and dissolving the marriage. Thereafter, the defendant herein obtained leave to set up this judgment of the Texas court as a defense to this action by way of supplemental answer, and the questions of law and fact raised thereby were tried at Special Term where it was held that the Texas court had no jurisdiction of the plaintiff at the time of rendering the judgment, and judgment was entered overruling the defense.

Wm. W. Badger, for applt. Edwin B. Smith, for respt. Held, That, if the judgment of the Texas court was binding upon plaintiff, it constituted a defense to this action, for if defendant's marriage with plaintiff had been thereby dissolved she was no longer his wife and he was accordingly disabled by that fact from further prosecuting this action against her under the laws of this State; the right to maintain such an action being secured only to a person sustaining the relation of

husband or wife to the defendant. 3 R.S., 6th ed., 155-6; Code Civ. Pro., § 1756.

58 Maine, 508, distinguished.

That it is now well settled by the authorities that when an action of divorce is commenced in another State by a husband or wife resident therein against the other party at the time residing in this State, service of the process of the foreign court in this State upon the defendant will not confer jurisdiction over the latter's person nor authorize a judgment dissolving the marriage which will be effectual or operative beyond the State in whose tribunals it may have been obtained. 4 Lans., 388; 110 U. S., 151; 19 Ohio, 502; 122 Mass., 156; 76 N. Y., 78.

That it has also been held, not only by the courts of this State, but in other States and in the Supreme Court of the United States, that a court in which a legal proceeding has been carried on without obtaining jurisdiction of the person of the individual designed to be proceeded against could not acquire such jurisdiction by his appearance for the purpose of objecting and alleging this want of it, and that, if his plea or answer were overruled, he might still contest the merits of the action without depriving himself of the validity of the objection taken to the jurisdiction of the tribunal, 4 Den., 72; 37 N. Y., 9; 17 Wend., 85; 4 Barb., 541; 9 Barb., 61; 15 How., 17; 1 T. & C., 578; 19 Wall., 223; 98 U. S., 476; 4 Robt., 616; 120 Mass., 549; 20 Texas, 289; 7 Texas, 59$; 106 U. S., 118; and under the