Mertz v. Mertz

CourtNew York Court of Appeals
Writing for the CourtLEHMAN
Citation271 N.Y. 466,3 N.E.2d 597
Decision Date08 July 1936
PartiesMERTZ v. MERTZ.

271 N.Y. 466
3 N.E.2d 597

MERTZ
v.
MERTZ.

Court of Appeals of New York.

July 8, 1936.


Action by Emmy Mertz against Fred Mertz. From a judgment of the Appellate Division, First Department (247 App.Div. 713, 285 N.Y.S. 590), which affirmed a judgment of the Special Term (158 Misc. 85, 284 N.Y.S. 83) dismissing the complaint, plaintiff appeals.

Affirmed.

CROUCH and FINCH, JJ., dissenting.

[3 N.E.2d 597]

Appeal from Supreme Court, Appellate Division, First Department.
Israel Hoffman and David Steckler, both of New York City, for appellant.

Irving I. Goldsmith, Joseph L. Roesch, Monroe Collenburg, and Frank Rashap, all of New York City, for respondent.


LEHMAN, Judge.

The plaintiff has brought an action in this state against her husband to recover damages for personal injuries which, she alleges, she sustained in the state of Connecticut through her husband's negligent operation of an automobile, owned and controlled by him. Under the law of New York the rule is well established that a husband is not liable to his wife for personal injuries caused by his negligence. Schultz v. Schultz, 89 N.Y. 644;

[3 N.E.2d 598]

Allen v. Allen, 246 N.Y. 571, 159 N.E. 656. The complaint alleges that under the law of the state of Connecticut a husband is liable for such injuries. The parties are residents of the state of New York. The problem presented upon this appeal is whether a wife residing here may resort to the courts of this state to enforce liability for a wrong committed outside of the state, though under the laws of this state a husband is immune from such liability.

‘A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage.’ The immunity of the husband is based upon the common-law doctrine of the merger of the beings of husband and wife in the unity of marriage. Each spouse is disabled under our law from maintaining an action against the other for personal injuries. Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 256, 164 N.E. 42, 43, 64 A.L.R. 293. We are told that the rule ‘exists merely as a product of judicial interpretation, is vestigial in character, and embodies no tenable policy of morals or social welfare.’ That is a strong indictment of the existing law, and, if true, calls for change in the law. In spite of such arguments, this court has held that the rule of law exists by tradition and authority, and change, if any, must be made by the Legislature. ‘We are not at liberty to extend it by dubious construction.’ Schubert v. August Schubert Wagon Co., supra, 249 N.Y. 253, at page 258, 164 N.E. 42, 43, 64 A.L.R. 293. It is equally true that we are not at liberty to disregard it as long as it remains part of the law of the state.

The Legislature of Connecticut has chosen to remove the common-law disability. There a wife may maintain an action against her husband for damages caused by his wrong, and no exception has been engrafted there upon the general rule that ‘illegality established, liability ensues.’ The sovereign power of each state is conterminous with its territorial limits. Its law alone determines what acts may be performed there with impunity and from what acts liability enforceable in its courts shall flow. The law of one state has in other jurisdictions such force only as is lent to it by the law of such jurisdiction. A cause of action for personal injuries is transitory, Liability follows the person and may be enforced wherever the person may be found. None the less, a cause of action arising in one state may be enforced in another state only by the use of remedies afforded by the law of the forum where enforcement is sought. The courts of the state of New York are not concerned with the wisdom of the law of Connecticut or of the internal policy back of that law. They must enforce a transitory cause of action arising elsewhere, unless enforcement is contrary to the law of this state. So we have said, ‘The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual motion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.’ Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 111,120 N.E. 198, 202. Cf. american Law Institute, Restatement of the Law of Conflict of Laws, § 612.

We have said again and again, as we did in Loucks v. Standard Oil Co. of New York, supra, that rights may not be granted or withheld by our courts ‘at the pleasure of the judges, to suit the individual notion of expediency or fairness.’ When the court said further in that case that the test of a right to resort to the courts of this state for enforcement of a foreign right exists ‘unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal,’ the court did not and could not have intended to formulate a standard measured by ‘individual notion of expediency or fairness' or, indeed, by any standard other than the law of the forum. Judicial decision has heretofore been confined to the formulation of rules of law and their application to the facts of a particular case. Notions of expediency and justice which at times we call ‘public policy’ may exercise a controlling influence in the development of law. Indeed as Judge CROUCH has pointed out in his opinion, ‘back of every law there is something which is conventionally referred to as public

[3 N.E.2d 599]

policy.’ Law written in constitution or statute is fixed. The courts must interpret the writing; they may not disregard the law as written. Its validity does not depend upon whether the public policy behind it is strong or weak, sound or unsound. It must always control judicial decision. Only the unwritten law resting upon judicial precedent is plastic. There, in reaching decision, the courts must, at times, formulate a new rule of law where statutes or earlier decisions furnish no sure guide. How far judicial decision then may be dictated by individual notion of expediency and justice has been the subject of much discussion. Upon one point all agree. The courts must always endeavor to apply to the facts of a particular case a general rule of law which they find...

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95 practice notes
  • Hamilton v. Accu-Tek, No. CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 22, 1999
    ...a foreign jurisdiction's law would be deeply abhorrent from the point of view of fundamental New York policy. See, e.g., Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597 (1936) (interspousal torts). Frequent public policy exceptions would entirely frustrate choice of law principles. As Chief Judg......
  • Schultz v. Boy Scouts of America, Inc.
    • United States
    • New York Court of Appeals
    • April 30, 1985
    ...with full compensation for wrongful death was jeopardized and led us to reject the Massachusetts limitation. Similarly, in Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, and Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 173 N.E. 564, this State's public policy was seriously threatened b......
  • Tal v. Tal
    • United States
    • United States State Supreme Court (New York)
    • February 8, 1993
    ...N.Y.S.2d 194, 414 N.E.2d 694; Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9, 13, 254 N.Y.S.2d 527, 203 N.E.2d 210; Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597), a party who properly appeared in the action is precluded from attacking the validity of a foreign country judgment in a coll......
  • Brawner v. Brawner, No. 46319
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1959
    ...conclusion of the Hamilton case on this question should now be disapproved. We are inclined to agree with the statement in Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, 601, 108 A.L.R. 1120, made in reference to the rule that public policy should prohibit a suit between spouses for a personal......
  • Request a trial to view additional results
95 cases
  • Pearson v. Northeast Airlines, Inc., No. 297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1962
    ...Conflict of Laws 198 (2 ed. 1951); Coster v. Coster, 289 N.Y. 438, 442, 46 N.E.2d 509, 512, 146 A.L.R. 702 (1943); Mertz v. Mertz, 271 N.Y. 466, 473, 3 N.E.2d 597, 599, 108 A.L.R. 1120 (1936); Hartness v. Aldens, Inc., 301 F.2d 228 (7th Cir. 1962).8 Moreover, as revealed in a comprehensive ......
  • Hamilton v. Accu-Tek, No. CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 22, 1999
    ...a foreign jurisdiction's law would be deeply abhorrent from the point of view of fundamental New York policy. See, e.g., Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597 (1936) (interspousal torts). Frequent public policy exceptions would entirely frustrate choice of law principles. As Chief Judg......
  • Schultz v. Boy Scouts of America, Inc.
    • United States
    • New York Court of Appeals
    • April 30, 1985
    ...with full compensation for wrongful death was jeopardized and led us to reject the Massachusetts limitation. Similarly, in Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, and Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 173 N.E. 564, this State's public policy was seriously threatened b......
  • Tal v. Tal
    • United States
    • United States State Supreme Court (New York)
    • February 8, 1993
    ...N.Y.S.2d 194, 414 N.E.2d 694; Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9, 13, 254 N.Y.S.2d 527, 203 N.E.2d 210; Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597), a party who properly appeared in the action is precluded from attacking the validity of a foreign country judgment in a coll......
  • Request a trial to view additional results

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