Taubenfeld v. Taubenfeld

• Decision Date: 12 April 1950
• Citation: 198 Misc. 108
• Parties: Dina Taubenfeld, Plaintiff,<BR>v.<BR>Henryk Taubenfeld, Defendant.
• Court: New York Supreme Court

198 Misc. 108

Dina Taubenfeld, Plaintiff,

v.Henryk Taubenfeld, Defendant.

April 12, 1950.

Rhea Josephson, Murray K. Josephson and Joseph S. Meadow for plaintiff.

Simon J. Hauser and Leopold A. Halperin for defendant.

NATHAN, J.

This is an action to recover sums claimed to be due and unpaid under a Polish matrimonial judgment.

Plaintiff and defendant were married in Belgium in 1928, and shortly thereafter took up residence in Poland, of which country defendant was then a national. In 1932 plaintiff obtained a judgment of a competent court in Warsaw, Poland, requiring defendant to pay her 250 zlotys per month for her support. There is no evidence that such judgment has since been modified or vacated.

Defendant came to the United States in 1938 and did not return thereafter to Poland. He made payments pursuant to the decree up to and including the month of April, 1939, but since then has made no payments of any kind to plaintiff.

Shortly after the invasion of Poland in 1939, plaintiff made her way to France, where she remained throughout the balance of the war, the German occupation and the subsequent liberation. In April, 1948, she came to this country, and in March, 1949, she commenced this action at law on the Polish judgment for the balance accrued and unpaid.

Defendant asserts as a complete defense that since the Polish judgment was not a final judgment for an absolute debt, no action on it may be maintained here. He contends, as partial defenses, that if any judgment is rendered in favor of plaintiff, it must be measured by the current rate of exchange for the zloty; and that the action is barred by a Polish five-year Statute of Limitations. Neither the marital status of the parties, which is currently in litigation elsewhere, nor their financial status, is germane to the issues raised by the pleadings or upon the trial.

It appears from the evidence that the judgment sued upon is not an intermediate order, but is a final judgment similar to our judgment of separation awarding permanent alimony. Under Polish law, the alimony provisions of such judgment may be modified or vacated upon the application of either party. It has not been established, however, that the Polish law requires or permits any such modification as to payments accrued and overdue at the time of the application. Consequently, the rule enunciated in Bentley v. Calabrese (155 Misc. 843) and Rossi v. Rossi (187 Misc. 543, affd. 269 App. Div. 821) is not applicable, and the complete defense falls.

Since any amount found to be due herein must be computed in zlotys and converted into dollars, an important issue is raised with respect to the time as to which such conversion takes place. In some instances, it is held that when a judgment is rendered in this country upon an obligation payable in a foreign nation in the currency of that nation, the rate of exchange adopted is that in effect at the time of institution of suit or rendition of judgment. (See Deutsche Bank v. Humphrey, 272 U. S. 517; Restatement, Conflict of Laws, § 424.) The rule generally adopted in New York, however, is to the contrary. In a suit brought here upon a cause of action where the plaintiff is...