In re Neidnig's Estate — 108 N.Y.S. 478

Majority

p. 478

In re NEIDNIG’S ESTATE.

(Supreme Court, Appellate Division, Second Department.

January 17, 1908.)

Headnote

Judgment—Foreign—Credit—Police Regulation.

A judgment, adjudication, or determination in a foreign country in the nature of a police regulation of that country has no extraterritorial force-as a judgment, and hence a determination in a foreign bastardy proceeding is not within the rule requiring full -faith and credit to be given to foreign judgments.

Appeal from Surrogate’s Court, Kings County.

In the matter of the estate of Andrew Neidnig, deceased. From an order ( 107 N. Y. Supp. 590 ) denying an application for a commission to take foreign testimony, Andrew Neidnig, administrator, appeals. Reversed and remitted.

Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.

Edmund F. Driggs, for appellant.

Robert S. Kristeller (Hersey Egginton, on the brief), for respondents.

This is 'an appeal from an order of the Surrogate’s-Court of Kings county denying the application of an administrator for a commission to take foreign testimony in proceedings brought to-

p. 479

remove him, dn the ground that he is not the son of the intestate, but a bastard. The application sought the testimony of the reputed grandmother, of the reputed aunt of the administrator, and of the burgomaster of the town where the administrator was born, “or any other to be named in the order.” Proof was submitted in opposition to the application, • consisting of transcripts from the records of the Royal Court at Hassfurt, in the Matter of the Guardianship of Johann Richard Sauerbrey of Kleinmunster. The learned surrogate denied the application upon the grounds that a decree of a foreign court having jurisdiction of the cause and the parties is entitled to full credence here, and that, even if this decree could be assailed for fraud or jurisdictional defects, that step could only be taken by one aggrieved, whereas, in this case the administrator had benefited by the fraud, if any. As to the other proposed witnesses the learned surrogate concluded that their testimony was not competent.

But there is a well-recognized exception to the rule that requires full faith and'credit to be given to foreign judgments. When the “judgment,” adjudication, or determination is in the-nature of a police regulation of the country wherein it was made, it has no extraterritorial force as a judgment. 2 Black on Judgments (2d Ed.) § 841; Freeman on Judgments, § 597; 23 Cyc. 1610; De Brimont v. Penniman, 10 Blatchf. 436 , Fed. Cas. No. 3,715. The "judgment” relied upon in this proceeding is the result of a proceeding of filiation in the Royal Court at Hassfurt. The records submitted show that the mother of this administrator, while she was single, brought proceedings under the guardianship of the mayor of Kleinmunster for the “reimbursement of the spoliation of her virgin honor,” for confinement and baptism expenses, and for the support of this administrator until he was 21, against J. M. Jacob, on the ground that he was the father of this child. Jacob when brought in denied the paternity, and resisted the application. ' Legal proceedings were authorized against him by the mother and the mayor as guardian within four weeks after October 19, 1881. The record of the proceedings shows nothing further, save that on November 7, 1881, the mayor presented an agreement for approval between Jacob and the woman, whereby Jacob paid 800 marks to the guardian, the capital sum to be invested and the interest to be paid to the woman, who renounced all further claims. This agreement was approved. In 1902 the illegitimate child arrived at maturity, applied for the sum thus invested, and received it.

I think that the “judgment” in that proceeding was nothing more than the determination of a bastardy proceeding in the exercise of the police regulation of the country. Proceedings of the same general character in this state are regarded as quasi criminal, not civil. People v. Colegrove, 63 Hun, 635 , 18 N. Y. Supp. 370 ; People ex rel. Fuller v. Carney, 29 Hun, 47 .

I think that the order should be reversed, and the proceeding remitted to the Surrogate’s Court for a hearing upon the merits. All concur.