Starbuck v. Starbuck

• Court: New York Court of Appeals
• Writing for the Court: HAIGHT
• Citation: 173 N.Y. 503,66 N.E. 193
• Decision Date: 17 February 1903
• Parties: STARBUCK v. STARBUCK et al.

173 N.Y. 503
66 N.E. 193

STARBUCK
v.
STARBUCK et al.

Court of Appeals of New York.

Feb. 17, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Martha H. Starbuck against Matilda E. Starbuck and others. From a judgment on an order of the Appellate Division (71 N. Y. Supp. 104) overruling defendants' exceptions to an interlocutory judgment and denying a motion for new trial, defendants appeal. Reversed.

[173 N.Y. 503]Artemas H. Holmes, for appellant Matilda E. Starbuck.

173 N.Y. 504]William N. Dykman, for appellants William H. Starbuck and others.
[173 N.Y. 505]Robert D. Benedict and James Emerson Carpenter, for respondent.

HAIGHT, J.

This action was brought by the plaintiff as the widow of William H. Starbuck, deceased, to recover dower in the real estate of which he died seised. The decedent and the plaintiff were married in the commonwealth of Massachusetts on the 14th day of October 1857, he being a resident of this state, where he continued to reside until his death, which occurred on the 29th day of March, 1896. In the year 1868 the plaintiff left her husband's residence and returned to her parents' home in Massachusetts, taking her daughter with her, where she resided until after his death. She then removed to this state and brought this action. Upon the trial the defendants offered in [173 N.Y. 506]evidence an exemplified record of a decree of divorce obtained by the plaintiff from her husband in the state of Massachusetts on the 4th day of May, 1874, upon the ground of extreme cruelty. The papers in that action were served upon the decedent personally in this state, but he did not appear in the action either personally or by attorney, and did not submit himself to the jurisdiction of the Massachusetts court. This decree was excluded from evidence upon the objection of the plaintiff's attorney, and exceptions were taken to such exclusion by the defendants. After the divorce, Starbuck contracted a marriage with the defendant Matilda Eliza Starbuck in the state of Pennsylvania, and the minor defendants are children of that union. The real estate in which the plaintiff seeks to recover dower is all situated in this state, and was acquired by Starbuck after the divorce.

We are of the opinion that the Massachusetts decree was competent, and that the defendants had the right to have it received in evidence. True, the plaintiff could not avail herself of a void decree, which she had procured to be entered, any more than she could of her own declarations, but it is different with the defendants. They have the right to avail themselves of the declarations, acts, and decrees obtained by their opponent, and the principle is well established that, where a party has procured a judgment or decree to be entered, submitting himself to the jurisdiction of the court, he cannot thereafter be heard to question the jurisdiction of the court which entered the judgment or decree. The decree, therefore, if it had been received in evidence, would have operated to defeat her claim that she is now the widow of the decedent and entitled to dower in the real estate acquired by him after the decree. We have recently had under consideration a similar question in Matter of Swales' Estate, 60 App. Div. 599,70 N. Y. Supp. 220, affirmed upon the opinion of the Appellate Division. 172 N. Y. 651, 65 N. E. 1122. In that case Mary E. Swales...