Benedict v. Clarke — 139 A.D. 242

Majority

p. 242

Jane West Horner Benedict, Respondent, v. Antoinette Lockwood Clarke, Appellant.

Second Department,

June 24, 1910.

Headnote

Party—usufructuary of money — pleading—foreign judgment — jurisdiction.

A usufruct under the laws of Louisiana is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profits, utility, and advaritages which it may produce, provided it be without altering its substance.

. Money under the Civil Code of Louisiana is an imperfect- usufruct and the position of the usufructuary thereof is'like that of a legal owner.

The widow of a-resident of Louisiana who has an absolute right to one-half of the community property and the usufruct in the other half may sue in her own name in this -State to recover a part of the property situated here.

An allegation that a judgment was “duly rendered ” in the court of another State is a sufficient averment of the jurisdiction of the court as against a general demurrer.

Burr and Carr, JJ., dissented.

Appeal by the defendant, Antoinette Lockwood Clarke, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of November, 1909, upon the decision of the court, after a trial at the Queens County Special Term, overruling a ■ demurrer to the complaint.'

H. E. Lippincott, for the appellant.

Harrison S. Moore, for the respondent.

The plea of the plaintiff is that perforce of the judgment in Louisiana she is entitled to one-half of the moneys, and as usufructuary to the. possession of the other half of the moneys sued for in this action. As to one-half of the moneys her plea is that of the legal owner thereof, and she stands upon the same'footing as any other legal owner. (Toronto G. T. Co. v. Chicago, B. & Q. R. R. Co., 123 N. Y. 37 , 46.)

A usufructuary is one who has the- usufruct. And a usufruct is

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the right of enjoying a thing the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing. The obligation of not altering the substance of the thing takes place only in the case of a perfect usufruct. (Civil Code of Louisiana, art. 533.) Money is an imperfect usufruct (Id. art. 534), and the ownership is in the usufructuary (Id. art. 536). The usufructuary is entitled under the Civil Code of Louisiana to the possession and the use of the usufruct, and to proceed by action against all persons to obtain possession and enjoyment thereof (Id. art. 556). It would seem, then, that her position is not like that of an executor or administrator, but like unto that of a legal owner, within the distinction pointed out in Toronto G. T. Co. v. Chicago, B. & Q. R. R. Co. (supra, 47 ).

There is no allegation that the Civil District Court for the parish of Mew.. Orleans, in the State of Louisiana, is a court of general jurisdiction and its jurisdiction in this case specifically alleged. And we cannot assume that such court is one of general jurisdiction. The name thereof does not import it, as does the name Court of Common Pleas of Mercer county (Pringle v. Woolworth, 90 N. Y. 502 ), for the reasons stated in the opinion therein, or the name Court of Common Pleas (Teel v. Yost, 128 N. Y. 387 ), for the reasons stated in Pringle's Case (supra). But, on the other hand, the allegation is that the judgment was “ duly rendered.” This, we think, is sufficient as against the general demurrer. (Horton v. Shipherd, 14 Wkly. Dig. 453 ; Dore v. Thornburgh, 90 Cal. 64 . See, too, Schluter v. Bowery Savings Bank, 117 N. Y. 125 , 131.) In Brownell v. Town of Greenwich ( 114 N. Y. 518 ) the court, per Vann, J., say : “ ‘ Duly,’ in legal parlance, means according to law. (Gibson v. People, 5 Hun, 542 , 543; People ex rel. Hawes v. Walker, 23 Barb. 304 ; Fryatt v. Lindo, 3 Edw. Ch. 239 ; Burns v. People, 59 Barb. 531 , 543;. Webb v. Bidwell, 15 Minn. 479 , 484.) It does not relate to form merely, but includes form and substance both. The expression ' duly adjudged,’ as used in the statement for the submission of this controversy, therefore, means adjudged according to law, that is, according to the statute governing the subject, and implies the existence of every fact essential to perfect regularity of procedure, and to confer jurisdiction both of

p. 244

the subject-matter and of the parties affected by the judgment, including the defendant. A judicial officer has jurisdiction, when he has power to inquire into the facts, to apply the law and, to pronounce the judgment." Any step in the cause or proceeding before him is necessarily the exercise of jurisdiction, and that step cannot be ‘duly’taken unless jurisdiction exists. The final step, in particular, the making of the judgment, cannot be ‘ duly’ taken unless all of. the preliminary steps upon which it is based have likewise been duly taken.” ■ •

The interlocutory judgment is affirmed, v^ith costs.

Hirschberg, P. J., and Woodward, J., concurred; Burr and Carr, JJ., dissented.

Interlocutory judgment affirmed, with costs.

Cases cited

Toronto General Trust Co. v. Chicago, Burlington & Quincy Railroad 123 N. Y. 37 N.Y. 1890-10-07 at 46 p. 242
Pringle v. Woolworth 90 N. Y. 502 N.Y. 1882-12-12 p. 243
Teel v. Yost 128 N. Y. 387 N.Y. 1891-10-06 p. 243
Dore v. Thornburgh 90 Cal. 64 Cal. 1891-06-30 p. 243
Schluter v. Bowery Savings Bank 117 N. Y. 125 N.Y. 1889-11-01 at 131 p. 243
Brownell v. Town of Greenwich 114 N. Y. 518 N.Y. 1889-06-11 p. 243
People ex rel. Hawes v. Walker 23 Barb. 304 N.Y. Sup. Ct. 1856-02-14 p. 243
Fryatt v. Lindo 3 Edw. Ch. 239 N.Y. Ch. 1838-10-01 p. 243
Burns v. People 59 Barb. 531 N.Y. Sup. Ct. 1871-04-04 at 543 p. 243