of the complaint, and alleged, "upon information and belief, that whatever damages and injuries were sustained by the plaintiff, at the time and place or on the occasion in the complaint mentioned, were contributed to and due to the negligence and want of care of the said plaintiff, and were not the result of any negligence on the part of these defendants or their agents, servants, or employés." It is true that the denial of the allegations of paragraph 5 was a denial of the allegation of the absence of any contributory negligence of the plaintiff sufficient to raise an issue on that subject, and that an affirmative allegation of the contributory negligence of the plaintiff was unnecessary, but it is difficult to see what injury has been occasioned to the plaintiff thereby, and above all why such an answer justifies the granting of a motion and the entry of an order "overruling the answer of the defendants McKesson & Robbins herein as frivolous, and for judgment as prayed for in the complaint." Code Civ. Proc. § 519, requires that the allegations of a pleading must be liberally construed with a view to substantial justice between the parties. How can it be said that the allegations of an answer which points the plaintiff to the defense of contributory negligence, though needlessly stated or alleged, should subject a defendant to the striking out of his answer as frivolous? Neither is the error cured by the permission to amend the answer. The defendants should not be subjected to such labor on what appears to be a frivolous objection to the answer.

Since the foregoing was written, our attention is called to the recent case of Railroad Co. v. Hinchliffe, 170 N. Y. 473, 63 N. E. 545. The appeal went up on demurrer to certain paragraphs of an answer. The court said (page 481, 170 N. Y., and page 547, 63 N. E.):

"The demurrer assumes the truth of the facts thus alleged. If they are true, it is difficult to see why they do not constitute a valid defense to the cause of action set out in the complaint. It is probably a defense that could be proved under the general denial, but this does not render the specific allegations demurrable. There are defenses which may be stricken out on motion but cannot be reached by demurrer. Section 500 of the Code of Civil Procedure provides: "The answer of the defendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; (2) a statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition.' It may be conceded that this defense is not new matter, as it is not in avoidance or confession of the matters set forth in the complaint. But it is none the less a defense, because it is what is termed in pleading a denial. Bouv. Law Dict.; And. Law Dict.; Moak, Van Santv. Pl. p. 509. If authority for such a plain proposition is needed, we have it in the .case of Benedict v. Seymour, 16 How. Prac. 298, 304. That was one of the early decisions explaining the nature of pleadings under the Code, and in that case Judge Selden said: 'Defenses, then, are divisible into two classes: (1) Those which deny some material allegation on the part of the plaintiff; (2) those which confess and avoid those allegations.'"

This seems to be a disapproval of the views upon the subject of "defenses" expressed in the Durst Case, supra, and is controlling upon this court.

For these reasons the order must be reversed, with costs.

Order reversed, with $10 costs and disbursements, and motion denied with costs. All concur.

and 111 New York State Reporter

SNYDER v. GRUNIGER et al.

(Supreme Court, Appellate Term. October, 1901.)

NOTES-SUIT BY ASSIGNEE-REAL PARTY IN INTEREST.

Where, in a suit on a note, plaintiff has the legal title by written transfer, it is no defense that the transfer was without consideration and for collection purposes.

Appeal from municipal court of New York.

Action by Frederick Snyder against Joseph Gruniger and others. From a judgment for defendants, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and MCADAM and GILDERSLEEVE, JJ.

H. K. Davis, for appellant.

H. C. Botty, for respondent Gruniger.

PER CURIAM. The defendant Gruniger made a promissory note in favor of the defendant Bittschier, who indorsed it over to John Hoffman, who indorsed it over to Hattie Hoffman. The note was not paid and went to protest, whereupon Hattie Hoffman took it up. There are two subsequent indorsers on the note, i. e., one Winkler and one Hudson. It is not disputed that Hattie Hoffman took the note up and had a cause of action thereon against the two defendants herein, Gruniger and Bittschier. The latter made no defense and the judgment against him was entered by default herein. The complaint, however, was dismissed as to the defendant Gruniger on the sole ground that the plaintiff, Snyder, was not the real party in interest, and that the action should have been brought by Hattie Hoffman. The plaintiff appeals.

The plaintiff sued as assignee of the claim of Hattie Hoffman. The assignment is regular in form and is acknowledged before a notary public, Mr. Henry K. Davis, who happens also to be the plaintiff's attorney herein. Mr. Davis swears to the execution of the assignment, and his testimony is practically undisputed on the subject. Defendant, however, claimed that there was no consideration for the assignment, and that the plaintiff was merely the agent of Hattie Hoffman for the collection of the note. The consideration mentioned in the assignment is one dollar and other good and valuable considerations. But whether there was a sufficient consideration or not is a question that cannot be raised by the defendant Gruniger, the maker of the note. The plaintiff is the real party in interest, under the Code, if he has a valid transfer as against the assignor, Hattie Hoffman, which seems to be conceded, and holds the legal title to the demand. The defendant has no legal interest to inquire further. A payment to or recovery by the assignee, the plaintiff herein occupying this position, is a protection to the defendant against any claim that can be made by the assignor, Hattie Hoffman. Sheridan v. Mayor, etc., 68 N. Y. 30. It is no defense to a party sued upon commercial paper to show that the transfer under which the plaintiff holds

it is without consideration, or subject to equities between him and his assignor, or colorable and merely for the purpose of collection, or to secure a debt contracted by an agent without sufficient authority. It is sufficient to make the plaintiff the real party in interest if he has the legal title, either by written transfer, as in the case at bar, or delivery, whatever may be the equities between the plaintiff and his assignor. Hays v. Hathorn, 74 Ñ. Y. 486. The judgment must be reversed and a new trial ordered, with costs to abide the event. Judgment reversed and new trial ordered, with costs to abide event.

(Supreme Court, Special Term, New York County. June, 1902.)

1. DIVORCE-SERVICE BY PUBLICATION-VALIDITY.

Plaintiff bad obtained a divorce for abandonment in a foreign state, after a domicile of 41⁄2 years in such state with her husband, on service by publication only. At that time he had left her, and was alternately in the state of New York and in Pennsylvania, but without any intention of making New York his permanent domicile. Held, that the divorce was valid as to the parties, and conclusive, under Const. U. S. art. 4, § 1, and precluded the wife from maintaining a subsequent action against her husband on the ground that after she had divorced him he had married again.

2. ESTOPPEL.

Where a wife invoked the jurisdiction of the court of another state, and induced it to grant her a divorce, she could not afterwards allege its nullity.

Action by Harriet Lacey against Frederick F. Lacey for divorce. Judgment for defendant.

Charles L. Hoffman, for plaintiff.
Howe & Hummel, for defendant.

LEVENTRITT, J. This is an action for divorce. The defense is that the alleged act of adultery was not meretricious, in that the plaintiff had theretofore procured a decree of divorce against the defendant, pursuant to which he had legally married the alleged co-respondent. The plaintiff claims that this decree is void and of no effect. The parties were married at the city of Omaha, in the state of Nebraska, on the 23d day of September, 1884, and they moved to Tacoma, in the state of Washington, in the month of May, 1888, and adopted that place as their residence. Tacoma continued to be the place of their matrimonial and only domicile for more than 41⁄2 years. Then, on or about December 11, 1892, the defendant left Tacoma for reasons variously stated in the testimony of the respective parties. The plaintiff says the defendant left to avoid the importunities of creditors. He asserts that he went to Central America on account of ill health. There is no evidence of marital infelicity or difficulties inducing his departure, and there is absolutely no evidence in the case which would justify any finding of desertion or abandonment at that specific time. While it is probably true that the defendant left Tacoma more on account of credit

and 111 New York State Reporter

ors than ill health, it is equally true that his leaving did not constitute an abandonment of domicile, matrimonial or otherwise. In a letter written within three weeks after his departure, he refers to returning to Tacoma; and in another, written within a few months, he writes to his wife that he hopes they will be "together soon. It appears that for some years he was expecting to return to Tacoma, awaiting the opportunity of securing a good position. Beyond the fact that there was no relinquishment of domicile in December, 1892, or for some time thereafter, the important fact to be emphasized is that at no time during the period of the pendency of the divorce proceedings instituted in the state of Washington by the wife, from issuance of summons to granting of decree, had the defendant acquired a domicile in the state of New York animo et facto. Before taking up the consideration of the effect of the decree granted to the plaintiff in the superior court in the state of Washington on the 31st day of July, 1894, it will be well briefly to trace the defendant's movements with reference to the acquisition of a New York domicile. The defendant testified that he resided in Tacoma from the 23d day of May, 1888, until the 12th day of December, 1892. Thence he went to Managua, in Central America, remaining there until April, 1893, when he came to New York "temporarily," as he testifies. At the end of 10 days he left for Chicago, accepted a position as hotel clerk, and remained in that city until November 1, 1893. Then he came again to New York; remained here for four or five weeks looking for employment; then went to the home of his mother at Battle Creek, Mich. Throughout this time he had formed no intention of locating anywhere permanently. In March, 1894, he returned to the city of New York, stopping a few days, then spent two months in the cities of Troy and Albany, and was in New York again in May, 1894. From May, 1894, to January or February, 1895, he was alternately in New York and Philadelphia. This testimony appears in the record: "By the court: Q. So you had not adopted New York as your permanent residence up to 1895? A. Not up to that time; no. Q. You had not made up your mind to become a resident of the state of New York up to 1895? A. I had not; no, sir." It also appears that some time between 1895 and 1897 the defendant became a domiciled resident of this state, that he cast his first vote here in 1897, and that he has since continued to have his domicile here. In 1895 he still had an intention of returning to Tacoma. It was not until the fall of the year 1894several months after the plaintiff had obtained her, decree that the defendant first heard of the divorce proceedings instituted against him. He acquiesced therein, and on the 23d day of February, 1901, he married the lady named as co-respondent in this action. plaintiff's divorce proceedings are not attacked for any irregularity or noncompliance with the law and statutes of the state of Washington. In fact, it is conceded that they were regular so far as that state is concerned, the plaintiff's position being that under the law of this state they are all without effect.

The

It appears from the certified record of the proceedings in the Washington court, admitted in evidence pursuant to a stipulation that it

should have the same force and effect as if an exemplified copy, that the plaintiff filed her complaint in the superior court of Pierce county, state of Washington, on the 15th day of May, 1894, praying for a divorce on the ground of willful abandonment and desertion, and alleging, among other formal matters, that the plaintiff then was, and had been for more than a year, a resident of the city of Tacoma. The complaint stated a cause of action under the Code and Statutes of Washington. Ballinger's Ann. Codes & St. §§ 5716, 5718. Return being made by the sheriff of Pierce county that after due and diligent search he had been unable to find the defendant in that county, and due affidavit having been made as provided for by section 4897, the summons was duly served by publication pursuant to section 4878. The first publication was made on May 19, 1894, the last publication on June 23, 1894, and the defendant's time to answer expired 20 days thereafter, to wit, on July 13, 1894. On July 31st, upon due proof to the court, and after hearing had, a decree was entered, the essential part of which reads:

"It is ordered, adjudged, and decreed that said marriage between the plaintiff, Harriet R. Lacey, and the defendant, Fred. F. Lacey, be, and the same is hereby, dissolved and annulled, and said plaintiff is freed and absolutely released from the bonds of matrimony, and all obligations thereof. Both parties are prohibited from intermarrying with third parties within six months from this date."

Without citing the Washington statutes and laws at greater length, it may be stated generally, what is in fact conceded by the parties to this action, that the decree granted is perfectly valid and enforceable in the state of Washington. The contention of the plaintiff is that this decree has absolutely no extraterritorial force, and that in this state it is without efficacy as to either party in any respect and for any purpose. I am unable to agree with this contention. In the

lamentable state of conflict which exists in the divorce laws and decisions in the various states and the various courts, and in the absence of that consummation, much to be wished, a unifying, clarifying, national divorce law, we must follow the decisions of our own court, except in so far as a different command is laid upon us by the pronouncements of the supreme court of the United States. The plaintiff relies on two cases: People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274, and Starbuck v. Starbuck, 62 App. Div. 437, 71 N. Y. Supp. 104. The former is the leading case on the subject in this state, and the latter the most recent statement of the rule. Between these two there is a considerable line of cases variously stating the same principle. O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. 110; De Meli v. De Meli, 120 N. Y. 485, 24 N. E. 996, 17 Am. St. Rep. 652; In re Kimball, 155 N. Y. 62, 49 N. E. 331; Atherton v. Atherton, 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650, reversed in 181 U. S. 155, 21 Sup. Ct. 544, 45 L. Ed. 794; Winston v. Winston, 165 N. Y. 553, 59 N. E. 273. As Mr. Justice Hirschberg says in the Starbuck Case:

"They all adhere to the general principle enunciated in the Baker Case that a state may adjudge the status of its citizen towards a nonresident, and may authorize to that end such judicial proceedings as it sees fit, and that other states must acquiesce, so long as the operation of the judgment is