Matthews v. Matthews

• Decision Date: 03 March 1925
• Citation: 240 N.Y. 28,147 N.E. 237
• Parties: MATTHEWS v. MATTHEWS.
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 28

147 N.E. 237

MATTHEWS

v.MATTHEWS.

Court of Appeals of New York.

March 3, 1925.

Action by Anna M. Matthews against William Thorne Matthews. From an order of the Appellate Division, First Department (210 App. Div. 652, 206 N. Y. S. 537) reversing an order of the Special Term which granted to the plaintiff alimony and counsel fee to be paid out of defendant's property, sequestrated under an order of the court without notice to him, plaintiff appeals by permission. Questions certified by Appellate Division.

Affirmed and questions answered.

See, also, 210 App. Div. 877, 206 N. Y. S. 934.

Appeal from Supreme Court, Appellate Division, First department.

Barnett E. Kopelman, of New York City, for appellant.

Richard M. Page, of New York City (William H. Page, of New York City, of counsel), for respondent.

CRANE, J.

Although we must affirm the order of the Appellate Division vacating and annulling ab initio the order entered May 2, 1924, granted herein, yet we do not agree with that court in its finding that section 1171-a of the Civil Practice Act is unconstitutional.

This appeal has been sent to us by the Appellate Division, which has certified two questions:

‘1. Is chapter 51 of the Laws of 1923 amending article 70 of the Civil Practice Act by inserting therein a new section, numbered section 1171-a, unconstitutional in that it is violative of section 1 of the Fourteenth Amendment of the Constitution of the United States and section 6 of article 1 of the Constitution of the state of New York.

‘2. Was the defendant's motion to vacate and annul ab initio the order of the Supreme Court, New York county, entered herein on May 2, 1924, properly granted, in that said order deprives defendant of his property without due process of law?’

[1] Section 1171-a is headed:

‘Sequestration of defendant's property in action for divorce or separation where defendant cannot be personally served and there is property within the state.’

It reads as follows:

‘Where in an action for divorce or separation it appears to the court that the defendant is not within the state, or cannot be found therein, or is concealing himself therein, so that process cannot be personally served upon him, the court may at any time and from time to time make any order or orders without notice directing the sequestration of his property, both real and personal and whether tangiableor intangible, within the state, and may appoint a receiver therof, or by injunction or otherwise take the same into its possession and control. The property thus sequestrated and the income therefrom may be applied in whole or in part and from time to time, under the direction of the court and as justice may require, to the payment of such sum or sums as the court may deem it proper to award, by order or judgment as the case may be, and during the pendency of the action or at the termination thereof, for the education or maintenance of any of the children of a marriage, or for the support of the wife, of for her expenses in bringing and carrying on said action and the proceedings incidental thereto or connected therewith; and if the rents and profits of the real estate, together with the other property so sequestrated, be insufficient to pay the sums of money required, the court, upon such terms and conditions as it may prescribe, may direct the mortgage or sale of sufficient of said real estate to pay such sums. The court may appoint the wife receiver or sequestrator in such cases.’

In its opinion the Appellate Division considered this section unconstitutional as authorizing the payment of alimony and counsel fee out of the sequestered property without notice to the defendant and before service of the summons in the action upon him. We agree that the defendant's property, whether he be resident or nonresident, cannot be paid out and disposed of by an order of the court without some notice actual or constructive to the defendant and an opportunity afforded him to be heard. We do not read this section, however, as attempting to confer such power upon the court. What the Legislature evidently intended to provide for was the case where a husband had property within the state and was concealing himself or else had disappeared so that personal service could not be made upon him. Under such circumstances, the court, in the interest of his wife and children and the public generally, was authorized to seize his property without notice and to hold it for legal disposition. By article 54 of the Civil Practice Act, attachment was not provided for in matrimonial actions. This section 1171-a attempted to provide a remedy in the nature of an attachment whereby upon the commencement of an action the husband's property could be seized and held for judgment or for order after notice.

An analysis of the section leads to this construction. In the very first words we have, ‘Where in an action for divorce or separation it appears to the court that the defendant is not within the state,’ etc. ‘In an action’ must refer to an action already pending or presently begun. As in the case of other provisional remedies, the order may be granted to accompany the summons. Civil Practice Act, §§ 818, 825. In the case of an attachment, for instance, the service of the summons by publication must commence within 30 days after the granting of the order for the attachment. Civil Practice Act, § 905. Section 1171-a then goes on to state:

‘The court may at any time * * * make any order * * * without notice directing the sequestration of his property, * * * and may appoint a receiver thereof * * * or otherwise take the same into his possession and control.’

This in effect is the same as attaching the defendant's property and holding it subject to the further order or judgment of the court. This is the only step which by this section the court is authorized to take without notice. This section recognizes and must be read in connection with the other provisions of the act which provide that where the defendant is a nonresident or conceals himself so that he cannot be found within the the state, service may be made upon him by publication. Civil Practive Act, § 232, subd. 5. In that case an order of sequestration may be made, but the service of the summons by publication must be commenced at once or within a reasonable time.

Wives and children of absconding husbands who have property within the state, therefore, have this new and additional remedy. The property may be seized and held by the sequestration order, subject to the further provision of the court.

In this connection it may be well to note that by section 1167 of the Civil Practice Act the summons when published must bear upon its face, ‘Action for a separation.’

Now we come to the provision of section 1171-a, which provides for the disposition of this property sequestered. The words ‘without notice’ do not appear in any of the following sentences. It is said that the property sequestered‘may be applied * * * under the direction of the court and as justice may require, * * * by order or judgment * * * during the pendency of the action or at the termination thereof, for the * * * maintenance * * * of the children, * * * wife, or for her expenses in bringing * * * said action.’ It must be conceded that no judgment could be obtained for the disposition of the sequestered property without personal or constructive service upon the defendant. We have no such thing in our practice; in fact, there is no such thing in existence in the law as a personal judgment without service or notice of some kind, and the only kind of notice that we recognize in this state for the obtaining of a judgment is personal service, substituted service, or the service by publication of the summons in the action. It necessarily follows that when the word ‘order’ is thus linked up to the word ‘judgment,’ so that the disposition of the sequestered property is to be ‘by order or judgment,’ the order also to be legal and effective must be on notice to the defendant either given personally or in some form recognized by our practice. Plymouth Coal Co. v. Commonwealth of Pennsylvania, 232 U. S. 531, 544, 34 S. Ct. 359, 58 L. Ed. 713;Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 658, 35 S. Ct. 214, 59 L. Ed. 405.

An...