Hughes v. Cuming

• Citation: 58 N.E. 794,165 N.Y. 91
• Parties: HUGHES v. CUMING.
• Decision Date: 27 November 1900
• Court: New York Court of Appeals

165 N.Y. 91

58 N.E. 794

HUGHES

v.CUMING.

Court of Appeals of New York.

Nov. 27, 1900.

Appeal from supreme court, appellate division, Second department.

Suit by William Hughes against Mari A. Cuming. From a judgment of the appellate division (55 N. Y. Supp. 256) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Reversed.

Alfred B. Cruikshank, for appellant.

Louis J. Vorhaus, for respondent.

VANN, J.

This action was brought to recover the sum of $969, alleged to be due the plaintiff upon an agreement of separation made on the 22d of December, 1887, between Mari A. Cuming, Maud A. Cuming, his wife, and Mary L. Chamberlain, as her trustee. Mr. and Mrs. Cuming were married in 1877, but at the date of said agreement they were living separate and apart from each other. After reciting that unhappy differences had arisen between the husband and wife, ‘for which reason they have consented and agreed, and hereby do consent and agree, to live separate and apart from each other during their natural lives,’ the instrument contains a covenant on the part of Mr. Cuming, ‘to and with the said trustee, and also to and with his said wife,’ that it should be lawful for her at all times thereafter to live separate and apart from him, in such places and with such persons as she might select. He agreed not to sue her for living separate and apart from him, or to compel her to live with him, and that he would not sue, disturb, or trouble any other person for receiving, entertaining, or harboring her. He promised not to visit her without her consent, or to knowingly enter any house in which she resided, or to send any letter or message to her, or claim any of the money, jewels, furniture, etc., in her possession, either then or thereafter. The covenants on his part concluded with the promise to pay, ‘for and towards the better support and maintenance of his said wife,’ certain specified sums, which she agreed ‘to take in full satisfaction for her support and maintenance and all alimony whatever.’ Then follows a covenant on the part of the trustee, ‘in consideration of the sum of one dollar to her duly paid, * * * to indemnify and bear him harmless of and from all debts of his said wife, contracted, or that may hereafter be contracted, by her or on her account, and, if’ he ‘shall be compelled to pay any such debt or debts, the said trustee hereby agrees to repay the same, on demand, to’ him ‘with all damage and loss that he may sustain thereby.’ On the 5th of March, 1891, an order was made by the supreme court at special term removing Mary L. Chamberlain,the party of the third part named in said instrument, ‘from her position and trust as trustee by and under’ said articles of separation, and appointing William Hughes to act as trustee in her place, upon giving security in the sum of $250. This order was made upon the petition of Mrs. Cuming, in which she alleged that Mary L. Chamberlain was an unfit and unsuitable person to execute the trust. Mr. Cuming appeared and opposed the motion, but Mary L. Chamberlain did not appear, and, although the notice of motion was addressed to her and to Mr. Cuming, it does not appear that it was ever served upon either. This order was received in evidence over the defendant's objection and exception, which raised the point that the court had no jurisdiction to make it, and especially that it had no jurisdiction of the subject-matter. The plaintiff executed the bond prescribed by said order of removal, and upon the trial, after proof of the foregoing facts, showed that the defendant, who had never recognized him as trustee, either by making payments to him or otherwise, had failed to pay certain sums required by the articles of separation. After the usual motion to dismiss, the court directed the jury to find a verdict for the plaintiff for the amount claimed, and the defendant excepted. The appellate division affirmed the judgment entered accordingly, and the defendant appealed to this court.

The most important question presented by this appeal is whether the supreme court had jurisdiction to make the order of removal. If that court had jurisdiction of the subject-matter of the controversy and of the parties thereto, its order, even if irregular, is binding, until reversed or set aside by direct attack. If, on the other hand, the court had no jurisdiction of the subject-matter or of the parties, its order was void, and could be attacked collaterally; for ‘one is not bound to appeal from a void order or judgment, but may resist it, and assert its invalidity at all times.’ Kamp v. Kamp, 59 N. Y. 212, 215;Losey v. Stanley, 147 N. Y. 560, 573,42 N. E. 8. As the order was made by a court of general jurisdiction, and there was no proof, either of record or otherwise, to show that every step essential to jurisdiction of the parties was not duly taken, the presumption is that such a court proceeded to judgment only after acquiring jurisdiction by the service of all notices actually necessary. Smith v. Trust Co., 154 N. Y. 333, 340,48 N. E. 55.

We shall assume, therefore, that the proper parties were before the court; and the remaining question is whether there was jurisdiction of the subject-matter, which ‘is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case arising, or which is claimed to have arisen, under that general question. * * * It is the power to act upon the general, and, so to speak, the abstract, question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power.’ Hunt v. Hunt, 72 N. Y. 217, 229. ‘By jurisdiction over the subjectmatter is meant the nature of the cause of action and of...