Anonymous v. Anonymous
| Decision Date | 09 September 1964 |
| Citation | 44 Misc.2d 14,252 N.Y.S.2d 913 |
| Parties | Paternity Petition of ANONYMOUS, Petitioner, v. ANONYMOUS, Respondent. |
| Court | New York City Court |
William G. Wall, New York City, for petitioner.
Doman & Ablondi, New York City (Nicholas R. Doman, New York City, of counsel), amici curiae.
This case arises from a verified petition filed in Filiation Term of the Family Court of the State of New York in the City of New York. Petitioner alleges that she is pregnant with child which is likely to be born out of wedlock, offers a certificate of pregnancy, and asks this Court to issue a warrant of arrest to require the Respondent to show cause why the Court should not enter against him a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances. Thie type of proceeding was formerly brought in the City of New York in the then Court of Special Sessions, under the name of paternity proceedings, pursuant to Article V of the former New York City Criminal Courts Act, and thus was regarded as criminal in form, although civil in essence (see Matter of Clausi, 296 N.Y. 354, 355, 356, 73 N.E.2d 548 (1947).
With the establishment of the statewide Family Court on September 1, 1962, Filiation Term was included in this Court as a civil proceeding; thereby, completing 'the evolution of paternity proceedings from 'criminal' to 'civil' proceedings' (Committee comment on section 523). This proceeding, as was its predecessor, is in derogation of the common law, which imposed no obligation on a putative father to support his natural child. See Hough v. Light, 275 App.Div. 299, 89 N.Y.S.2d 361 (1st Dept. 1949); Commissioner of Public Welfare v. Koehler, 284 N.Y. 260, 266, 267, 30 N.E.2d 587 (1940).
In support of her application for the warrant of arrest, the petitioner alleges that the respondent is the _____ Ambassador attached to the _____ Mission to the United Nations, that he is likely to leave the jurisdiction and that a summons would be unavailing. A special appearance has been entered on behalf of the 'Embassy of the Republic of _____ amici curiae,' urging that this court lacks jurisdiction because of diplomatic immunity and status.
The Embassy predicates its claim on the 'Headquarters Agreement' between the United Nations and the United States, as conferring on resident representatives of Member Nations to the United Nations the privileges and immunities of ambassadors accredited to the United States, Public Law 357, 80th Cong., 1st. Sess., Ch. 482, 61 Stat. 756, (1947); on Article III, Section 2, clause 2 of the Constitution giving the Supreme Court original jurisdiction in all cases affecting ambassadors, other public Ministers and Consuls; on 28 U.S.Code Section 1251, subd. a, par. , vesting in the Supreme Court original and exclusive jurisdiction of 'All actions or proceedings against ambassadors and other public ministers of foreign states * * * not inconsistent with the law of nations'; and on 22 U.S.Code Section 252, declaring that any Federal or State writ of process 'whereby the person of any ambassador or public minister of any foreign prince or State, authorized and received as such by the President' is arrested or imprisoned, or his goods or chattels seized or attached shall be void.
It has been generally maintained that the whole subject of the domestic relations of husband and wife and parent and child belongs to the law and courts of the states. Ohio ex rel. Popovici, Vice Consul of Roumania v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930), a suit for divorce and alimony; Urdaneta v. Urdaneta, 179 Misc. 95, 37 N.Y.S.2d 601 (Domestic Relations Court of New York, Family Court, N. Y. Co., 1942), petition by abandoned wife of Vice-Consul of Venezuela for support; State v. Flores, 197 Minn. 590, 268 N.W. 194 (1936), a filiation proceeding against a consul; Duran-Ballen v. Duran-Ballen, 180 Misc. 750, 40 N.Y.S.2d 617 (Sup.Ct., N. Y. Co., 1943), wife's action for declaratory judgment against consul-general of Ecuador to declare a foreign divorce invalid; and see Albanese v. Richter, 161 F.2d 688, 689 (3rd Circ., 1947); Hearne v. Smylie, 225 F.Supp. 645, 653 (U.S.D.C., D. Idaho, S.D., 1964). See, as to the case law prior to Popovici, supra; Higginson v. Higginson, 96 Misc. 457, 158 N.Y.S. 92 (Sup.Ct., Kings Special Term, 1916).
In Popovici, supra, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489, the Court denied a writ to prohibit a state court from hearing a marital case against a vice-consul, notwithstanding apparently broad constitutional and statutory language giving the Supreme Court original jurisdiction and the federal district courts exclusive jurisdiction of all suits against consuls and vice consuls, Const. Art. III, Section 2; 1911 Judicial Code Section 256(8) and Section 24(18) [36 U.S.Stat. 1087]. Mr. Justice Holmes emphasized that the entire field of husband-wife, parent-child relations has been understood to belong to the laws of the states, not of the United States; that federal jurisdiction over divorces and alimony has always been denied; and that, indeed, it was the common understanding when the Constitution was adopted that the domestic relations of husband and wife, and parent and child, were reserved to the states (280 U.S. 379, at 383, 384, 50 S.Ct. 154, at 155). Holding, moreover, that the statutory language had to mean ordinary civil proceedings and not what formerly would have belonged to the Ecclesiastical courts, the Court declared that in 'the absence of any prohibition in the Constitution or laws of the United States it is for the State to decide how far it will go' (ibid, 384, 50 S.Ct. 155).
It appears clear, however, that Popovici dealt only with the extent of the exclusive jurisdiction of a suit against a consul by virtue of federal statute, and not with any claim of diplomatic immunity. In contradistinction to ambassadors, consuls are commercial representatives and, as such, their immunity is limited at the most to their official acts. Carrera v. Carrera, 174 F.2d 496 (U.S.C.C., D.C., Circ., Feb. 28, 1949); Waltier v. Thomson, 189 F.Supp. 319 (U.S.D.C., S.D., N.Y., 1960); Anderson v. Villela, 210 F.Supp. 791 (D.C.Mass., 1962).
As the Court pointed out in Carrera v. Carrera, in upholding dismissal of a domestic relations suit against an ambassador's butler on the ground of the latter's diplomatic immunity, the question of diplomatic immunity was not raised in Popovici because .' Carrera, 174 F.2d at p. 498; Cf., Waltier v. Thomson, 189 F.Supp. 319, supra; and see the limited immunity which the United States in 1945 conferred unilaterally on foreign representatives to international organizations; in the International Organizations Immunity Act, Title 22, Sections 288a to 288f, particularly section 288d.
However, in the case at hand both the attorney for the petitioner and the lawyers for the Embassy of the Republic of _____ agree that the Respondent is the _____ Ambassador attached to the _____ mission to the United Nations. The brief on behalf of the Embassy shows that the Respondent is designated by the Republic of _____, a member of the United Nations, as its Permanent Representative and Ambassador Extraordinary and Plenipotentiary to the United Nations, and that he holds a card issued by Secretary of State Herter, certifying that he is entitled as the Permanent Representative of the _____, 'to the privileges and immunities set forth in Public Law 357, 80th Congress' (1947). [Although not determinative of the application, we note a letter from the United States Mission to the United Nations, appended by counsel for the petitioner, informing him that, pursuant to his request, the matter of certain allegations made by the petitioner were discussed with the respondent Ambassador, and that he categorically denied them.]
Public Law 357 of the 80th Congress, supra, Tit. 22 of the U.S.Code, § 287, is known as the 'Headquarters Agreement'. It was entered into between the United States and the United Nations. Article V, section 15, subdivision 1 provides that every person designated by a Member of the United Nations as its principal resident...
To continue reading
Request your trial
-
Fernandez v. Fernandez
...(1967) p. 107; B. Sen, A Diplomat's Handbook of International Law and Practice (2d Ed.Rev.1979) p. 111; Anonymous v. Anonymous, 44 Misc.2d 14, 19, 252 N.Y.S.2d 913 (1964). In a position paper prepared in 1961 for the United States delegation to the negotiating conference for the Convention,......
-
Shamsee v. Shamsee
...the court on the basis of the facts properly before it (see Menon v. Weil, 66 Misc.2d 114, 320 N.Y.S.2d 405; Matter of "Anonymous" v. "Anonymous", 44 Misc.2d 14, 252 N.Y.S.2d 913; Tsiang v. Tsiang, 194 Misc. 259, 86 N.Y.S.2d 556). Special Term thus erred in its insistence on proof that the ......
-
Weidner v. International Telecommunications, 12328.
... ... Berger v. Chase Nat. Bank of City of New York, 105 F.2d 1001 (2d Cir. 1939), aff'd 309 U.S. 632, 60 S.Ct. 707, 84 L.Ed. 990 (1940); Anonymous v. Anonymous, 44 Misc.2d 14, 252 N.Y.S.2d 913, 919 (1964).3 ... Finally, appellant contends that even if the Executive Order was ... ...
-
Weidner v Intelsat
...Berger v. Chase Nat. Bank of City of New YorkECAS, 105 F.2d 1001 (2d Cir. 1939), aff'd, 309 U.S. 632 (1940); Anonymous v. AnonymousINTL, 44 Misc. 2d 14, 252 N.Y.S. 2d 913, 919 (1964).[7]8 Finally, appellant contends that even if the Eecutive Order was valid, Intelsat was not immune from thi......
-
Abuse of diplomatic immunity in family courts: there's nothing diplomatic about domestic immunity.
...crime). (7.) See, e.g., In re Terrence K., 522 N.Y.S.2d 949 (N.Y. App. Div. 1987) (concerning child abuse); Anonymous v. Anonymous, 252 N.Y.S.2d 913 (N.Y. Fam. Ct. 1964) (concerning paternity); Motion to Strike Portions of Indictment, [paragraph] 4, United States v. Conrey, 2009 WL 3812044 ......