Mary B. Van Cleaf, Resp’t, v. Catharine Burns et al., App’lts.(Supreme Court, General Term, Second Department,Filed December 14, 1891.)Where it is made to appear that a judgment of divorce lawfully granted in another state has the effect to deprive the defendant therein of dower in that state, it should he permitted the same operation in this state.
Appeal from judgment in favor of plaintiff.
Action to recover dower in land in the city of Brooklyn, of which David Yan Cleaf, deceased, was seized while the husband of the respondent.
The said David Yan Cleaf, being seized of the premises and residing in Illinois, brought an action against his wife (the re: spondent) for a divorce on the ground that she had wilfully deserted and absented herself from him. The wife was then a resident- of this state, but she appeared and answered in that action, and judgment was recovered by him, dissolving the marriage between the parties. It is also found that the court in Illinois had jurisdiction of the subject-matter of the action and of the parties.
The statute of Illinois, proved on the second trial of this action, is as follows:
“ If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure; but if such divorce shall be for his or her own fault or misconduct, such dower or jointure and any estate granted by the laws of this state in the real or personal estate of the other shall be forfeited.”
Josiah T. Marean, for app’lt; John JET. Kernble, for resp’t.
We think this judgment in favor of the plaintiff should be reversed.
By the case as it is now presented it expressly appears that the judgment of divorce granted by the court in the state of Illinois has the effect to deprive the plaintiff of dower in that state, and the case is thus free from the decision of the court of appeals.
In the opinion of that court it was said: “No misconduct other than adultery is here permitted to deprive a wife of existing dower rights, even if it be the basis of a judgment of divorce lawfully rendered in another state, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion.”
As, therefore, the judgment of divorce has the effect to deprive the plaintiff of dower in the state of Illinois, the jurisdiction where the judgment was rendered, we think it should be permitted the same operation in this state.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Barnard, P. J., and Pratt, J., concur.