Dunstan v. Higgins

• Decision Date: 11 April 1893
• Citation: 138 N.Y. 70,33 N.E. 729
• Parties: DUNSTAN v. HIGGINS.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 70

33 N.E. 729

DUNSTAN

v.HIGGINS.

Court of Appeals of New York.

April 11, 1893.

Appeal from supreme court, general term, first department.

Action by Henry George Dunstan against Cecil Campbell Higgins on a judgment of an English court. An order denying a motion for a commission to take testimony, and a judgment for plaintiff on the merits, were affirmed at general term, (17 N. Y. Supp. 887,) and defendant appeals. Affirmed.

Frank Sullivan Smith, (Cecil Campbell Higgins, of counsel,) for appellant.

Ten Eyck & Remington, (S. R. Ten Eyck, of counsel,) for respondent.

O'BRIEN, J.

The plaintiff recovered in an action upon a judgment in his favor; and against defendant, rendered in 1890 by the supreme court of judicature in England. It appears that the plaintiff, in pursuance of an agreement, manufactured and shipped at London, to the defendant at New York, an omnibus and Beaufort cart, at a price agreed upon. Suit was brought upon the account by the plaintiff against the defendant in England, and personal service of process was made upon him there, and jurisdiction obtained by the court of the person of the defendant and the subject-matter of the action. The defendant appeared, and interposed for defense, in substance, that the articles were manufactured and shipped under a special contract, by which the price and the character and quality of the articles were particularly specified, and that the goods, when received by the defendant, did not conform to the agreement, but were practically worthless to him. The plaintiff denied that there was any agreement to manufacture such vehicles as the defendant claimed, and asserted that the articles delivered conformed in all respects to the defendant's order. While the action was at issue in England, the defendant applied to the court for a commission to examine witnesses in this country to prove the allegations of his answer. This application was denied, upon what ground, or for what reason, does not appear. The defendant did not appear for trial, and the court ordered judgment against him, and, for defense to this judgment in our court, he has interposed substantially the same facts, and insists that it is unjust and unfair, and that, as he was not permitted to produce his proofs at the trial in England, he is not now bound by the judgment. He also applied to the courts here, in this action, for a commission to examine witnesses in England, which application was refused; and upon the trial the court held that the foreign judgment was conclusive, and that the plaintiff was entitled to recover. The general term has affirmed the judgment, and also the order refusing the commission, and the appeal to this court is from both determinations.

It is the settled law of this state that a foreign judgment is conclusive upon the merits. It can be impeached only by proof that the...