Perkins v. Guar. Trust Co. of New York

• Decision Date: 25 May 1937
• Citation: 8 N.E.2d 849,274 N.Y. 250
• Parties: PERKINS v. GUARANTY TRUST CO. OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

274 N.Y. 250

8 N.E.2d 849

PERKINS

v.GUARANTY TRUST CO. OF NEW YORK et al.

Court of Appeals of New York.

May 25, 1937.

Action by Eugene A. Perkins against Idonah Slade Perkins and another, wherein the named defendant filed three counterclaims. From an order granting plaintiff's motion to strike out the third counterclaim, and from a decree for plaintiff (248 App. Div. 712, 290 N.Y.S. 125), the named defendant appeals.

Reversed, and judgment directed in accordance with opinion.

This action in equity was begun on August 8, 1933. The amended complaint, verified by one of plaintiff's attorneys on information and belief, sets up two causes of action. In the first cause of action it is asserted that plaintiff is entitled to the possession of and dominion over certificates representing 24,000 shares of the capital stock of the Benguet Consolidated Mining Company, a Philippine corporation, which were issued in the name of Idonah Slade Perkins, his wife, and are in the custody of the defendant Guaranty Trust Company of New York, by virtue of the stock being property of the conjugal partnership in accordance with the laws of the Philippine Islands. Proceedings in the Philippine courts are there and in a supplemental complaint set up by which, it is alleged, the rights of the parties have been finally adjudicated, and substitute certificates for the stock were delivered to him. The second cause of action is in conversion and opens up the question of title in and ownership of the stock de novo without reliance upon judicial proceedings in the Philippines. Plaintiff seeks a decree upon the merits that he is the true and lawful owner of the certificates in question, that the certificates of stock be delivered to him, and that defendants account for and pay over to him all dividends received by them.

The defendant trust company, in its answer, put in issue by suitable denials the allegations of the complaint and asserted that it had received the certificates from Mrs. Perkins on October 8, 1930, for safekeeping, held them merely as custodian for her, and claimed no personal interest therein and would make delivery according to the order of the court.

Defendant Idonah Slade Perkins suitably put in issue all of the allegations of the complaint by general denials or by special denials and defenses concerning the binding effect, validity, and scope of the judgment and orders in the Philippine court, the alleged ownership of the stock by plaintiff, and his right to the possession and control of the certificates. Additionally, she asserted that the Philippine judgment was obtained by fraud and mistake, that it was not based upon any adjudication on the merits, that it did not involve the issue here presented, and she raised the issue that the Philippine court was without jurisdiction to make the decree dated August 4, 1930, upon which plaintiff relies, and that the order on her motion to vacate such decree was discretionary and interlocutory only. By way of a partial defense to both causes of action and a first counterclaim, she alleges that the plaintiff has failed and refused to support her and that she is entitled to support out of one-half of any property of the conjugal partnership, if the Philippine law is applicable. In a second counterclaim she alleges that the parties are and have been at all times since their marriage citizens of the State of New York, that she is the owner of the stock, and that an assignment of the stock which she executed and delivered to her husband on July 25, 1930, is void as matter of law or, if not void, is voidable for fraud and misrepresentation by him. She also pleaded a third counterclaim in which she set up a cause of action for a separation on the ground of cruel and inhuman treatment and refusal of support by her husband and seeks a suitable allowance for support and maintenance. In addition to such relief, she asks that the complaint be dismissed, that the assignment be declared void, and that plaintiff account to her for any dividends on the stock that he may have received.

Plaintiff, by a reply, put in issue the new matter set up in the answer and admits that he has received the dividends on the stock since July 25, 1930. In a separate defense to the first counterclaim contained in the answer, he alleges that in the year 1931 Mrs. Perkins commenced an action against plaintiff in the Court of First Instance in Manila (Civil Case No. 38745) in which plaintiff appeared and in which she sought an allowance for separate maintenance and counsel fees and in which it was adjudged on February 25, 1931, after a trial on the merits, that she was not entitled to maintenance and counsel fees payable by Perkins personally but that Perkins should pay her certain sums for maintenance and counsel fees which should be a charge on the portion of the conjugal property which might be eventually awarded to her as her share thereof upon the dissolution and liquidation of the conjugal partnership. Plaintiff alleged that he had complied with such order. As a separate defense to the second counterclaim contained in the answer plaintiff again set up the proceedings in the Philippine courts and alleges that all questions raised were finally and conclusively adjudicated against her.

Plaintiff has succeeded in the lower courts. On motion preliminary to trial, an order was made on January 18, 1934, striking out the third counterclaim. The appeal comes to this court by permission and brings up for review the correctness of the order striking out the third counterclaim as well as the decree made at the close of the trial. Further facts are stated in the opinion.

LEHMAN, J., dissenting. Appeal from Supreme Court, Appellate Division, First department.

Milton R. Weinberger, William Klein, Jerome Weinstein and Adolph Lund, all of New York City, for appellant.

Martin Taylor, Henry A. Stickney, and Otto Schoenrich, all of New York City, for respondent.

PIPPEY, Judge.

The issue involves title to and ownership and/or management and control of 24,000 shares of the capital stock of the Benguet Consolidated Mining Company said to be worth more than a quarter of a million dollars. The character, quality, and extent of the ownership of, control over, and right to possession of the certificates representing the stock depends upon whether the laws of the Philippine Islands or the laws of the State of New York govern the property rights of Perkins and his wife, and attention first must be addressed to a solution of the question.

Defendant Idonah Slade Perkins was born in Big Prairie, Mich., December 14, 1886. Later she lived for a time in Spokane, State of Washington, and from there went to the Philippines in 1913. Plaintiff was born in 1886 a citizen of the United States. His actual residence until after he was twenty-two years of age and his domicile from birth was in Brooklyn, N. Y. He was admitted to the practice of law in New York State in the year 1908 and then asserted under oath, as the law required (Code Civ.Proc. § 56), that he was a citizen and resident of the State of New York. Prior to 1914 he went to Manila, P. I., and since arrival there has been engaged in the practice of law in the Philippines. Perkins and his wife were married at Manila on January 3, 1914, by the pastor of the Central Methodist Episcopal Church. The marriage was not authorized by nor contracted under the provisions of the Spanish Marriage Law of 1870 or under the provisions of the Civil Code of Spain, but rather pursuant to the authority conferred by the provisions of section 5 of General Order No. 68 of the United States Military Occupation, as amended, and was valid both in the Philippines (United States v. Macleod, 3 Phil. 510, 513) and in the United States and the State of New York (Van Voorhis v. Brintnall, 86 N.Y. 18, 40 Am.Rep. 505;Thorp v. Thorp, 90 N.Y. 602, 43 Am.Rep. 189). Perkins and his wife have been living apart since 1930, but there has been no decree of separation or divorce.

Change of the status of either as a citizen of the United States could be effected only by naturalization under the naturalization laws of the Philippine Islands enacted on March 26, 1920 (Pub.Laws Philippine, No. 2927), pursuant to authority conferred upon the Philippine Legislature by an act of the Congress of the United States of August 29, 1916, embodying similar provisions of previous acts. 39 U.S.Stat. 546; U.S.Code, tit. 48, § 1002 (48 U.S.C.A. § 1002); United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890; Roa v. Collector of Customs, 23 Phil. 315, 330; Go Julian v. Government of Philippine Islands, 45 Phil. 289. Neither party has performed any act of renunciation of American citizenship or taken any steps to acquire Philippine citizenship but, on the contrary, each party has persistently asserted American citizenship at all times. Mere residence in the Philippines, no matter how long continued, cannot affect their status as citizens of the United States or plaintiff's status as a citizen of the State of New York. Matter of Johnson, 39 Phil. 156; In re Babock (Templeton v. Babcock), 52 Phil. 130.

The principle of nationality governed the civil rights of residents of the Philippine Islands. Article 10 of the Civil Code of Spain (extended to the Philippines by royal decree in July, 1889), so far as not repealed or inoperative because of change of sovereignty, reads as follows:

‘Art. 10. Personal property is subject to the laws of the nation of the owner thereof; real property to the laws of the country in which it is situated.

‘Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated.’

The words ‘residence’ and ‘dom...