(158 App. Div. 166.)

FAIRCHILD et al. v. CITY & COUNTY CONTRACT CO. (Supreme Court, Appellate Division, Second Department. July 25, 1913.) RAILROADS (§ 64*)-PURCHASE OF LAND-Contract-CONSTRUCTION.

Defendant, having a contract to construct a railroad and stations for a railroad company, contracted to purchase land from plaintiffs for a station at a particular location. The contract provided that the price was a reduction from the true value of the land, and was granted in consideration of the benefit the construction of the railroad and the station would cause to accrue to plaintiffs' other land in the immediate vicinity. The railroad, the principal officers of which also were officers of defendant, had previously located the road through the property in question, but later changed the route so that it did not touch the property at all, and defendant refused to purchase. Held, that defendant's obligation to take the land was not excused by the change of location and that it was liable for the damages sustained by its breach.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 144, 147-152; Dec. Dig. § 64.*]

Appeal from Trial Term, Westchester County.

Action by John F. Fairchild and others against the City & County Contract Company. Judgment for plaintiffs, and defendant appeals.. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

Ralph Polk Buell, of New York City (George S. Graham, of New York City, on the brief), for appellant.

Arthur M. Johnson, of New York City, for respondents.

THOMAS, J. On a former appeal it was decided that the complaint stated a good cause of action for damages. 153 App. Div. 277, 138 N. Y. Supp. 133. The present question is whether the failure to build and maintain a station is excused by change of location of the railroad. The defendant was empowered and obligated by contract with the railroad company to outfit and to deliver the railroad, built on right of way acquired in the company's name, and equipped ready for operation. In furtherance of such contract, the defendant made the contract for the purchase of the land in question, which was appropriated by defendant towards the fulfillment of the contract with the company.

If the defendant made such appropriation so as to commit the company to it, the latter could not change its location and compel the defendant to relinquish this and furnish other right of way without making compensation for any damages that defendant would suffer thereby. The contract with Reynolds was made March 2, 1906 (139), and the deed was executed in the following May (43) and contained the following stipulation:

"It is further agreed that the price at which said property is sold by the party of the first part to the party of the second part, is a reduction from the true value of the property which reduction the party of the first part has consented to, in consideration of the benefit which the construction of the railroad and of the railroad station proposed to be constructed by the said •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

party of the second part will be to the remaining property of the party of the first part and in consideration for such reduction in the price of the property hereby conveyed, it is agreed by the party of the second part that it will, when it shall have constructed said railway as now laid out, construct, maintain and operate, or cause to be constructed, maintained and operated, a station on the line of said railway, which station shall be located upon lots numbers 81, 82, 83 and 84, as shown on said subdivision map, hereto annexed, and for such purpose shall, on the completion of said railway construction, exercise its option to purchase said lots 81, 82, 83 and 84 and said station shall be constructed and ready for use as such, on or before March 1, 1911."

It was not until February, 1909, that the route was changed so as to be entirely without the land purchased, and at that time the New York, New Haven & Hartford Railroad Company owned a controlling interest in the stock of the New York, Westchester & Boston Railway Company, and also in the stock of the defendant; and the defendant's president, treasurer, and secretary were the same persons who held similar positions in the railroad company, and the defendant's three directors were directors in the railway company, and “a certain large number of stockholders were joint stockholders in both companies." It is incredible that the railroad company disclaimed the right of way purchased by its authorized contractor, and changed its route without indemnifying and without the consent of the defendant, who had the sole right to build the railroad. The company had located its route through the Reynolds property before the time of the purchase, and the defendant conformed to its agreement for constructing the road in acquiring the property, and the company could not repudiate the act, and it is not presumed that it did so without defendant's consent. The evidence is not fully returned, but I assume from the presentation that nothing was omitted bearing on this question. But at the time of the abandonment of the old line there was not only no antagonism between the railroad company and defendant, but a practical unity of control, and, if the former changed the route against the will and interest of the defendant, the defendant should make it appear.

But even so, the defendant cannot escape responding. It had its contract with the railroad company and, fortified by it, agreed to cause the station to be maintained. It had or had not the authority to settle the location of the station. If it had such authority, it could obtain reparation for failure of the company to substantiate the agreement. If it had not such authority, it was assuming it and cannot plead its absence. There has been no destruction of the subject-matter of the contract by superior force, nor, so far as appears, against defendant's will. The defendant's very guaranty was that the station should be in a given place, and it fared better for it. It cannot now plead that it was not potential to put it there; it made its ability to do so the very basis for a reduced purchase price. It knew the law and the possibility of change of line and the power of the company to do it; it knew its relations to the company and could measure its power of influence or compulsion to keep the line where it was located and to have a station maintained, and so it agreed, in effect, that the railroad it had full and sole authority to build should be on a certain

route, and that, with the entire power to establish stations, it would fix one on a designated location. Now it pleads that it was impotent to prevent a change of route, but it stipulated its potency and should not now be heard to deny it. Relying then on the former decision of this court that the complaint does state a cause of action-a conclusion I am not at liberty to reconsider-there is no legal excuse for defendant's failure.

The judgment should be affirmed, with costs. All concur.

(81 Misc. Rep. 508.)

GIBSON v. GIBSON.

(Supreme Court, Special Term, Erie County. July, 1913.)

1. DIVORCE (§ 328*)-JURISDICTION-ESTOPPEL.

Where a party obtained a decree of divorce without the state on notice by publication, he will not be permitted to deny the jurisdiction of the court or the validity of the decree, since he is estopped by having submitted himself to its jurisdiction and by his securing a decree in his own favor.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 831-834; Dec. Dig. § 328.*]

2. DIVORCE (§ 1*)—NATURE OF REMEDY-JURISDICTION OF COURts.

The courts of this state have no authority to grant or modify decrees of divorce or separation, or for alimony, except as conferred by statute. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 1; Dec. Dig. § 1.*]

3. DIVORCE (§ 245*)-JURISDICTION OF COURT-Statute.

Under the direct provisions of Code Civ. Proc. § 1771, the court has jurisdiction to modify its decree in relation to alimony.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 691-695; Dec. Dig. § 245.*]

4. DIVORCE (§ 245*)-ALIMONY-MODIFICATION OF Decree.

Where a wife secures an absolute divorce, following a decree for separation awarding her alimony, the decree of separation should be modified so as to relieve the husband from the payment of alimony, since alimony given in a decree of separation is to enable the wife to live apart from the husband while the marriage still exists, and, after the relation is ended by death or absolute divorce, it is no longer necessary.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 691-695; Dec. Dig. § 245.*]

Action by Leota G. Gibson against Calder C. Gibson for separation. There was judgment for plaintiff, and defendant moves to modify decree so as to relieve him from the payment of alimony. Sustained. August Becker, of Buffalo, and Worthy B. Paul, for the motion. E. C. Schlenker, of Buffalo, opposed.

WHEELER, J. The papers on this motion show that on the 23d of June, 1910, the plaintiff obtained in this action a judgment separating the parties from bed and board, and by that decree the defendant was directed to pay the plaintiff $25 per month alimony. This alimony was paid as directed, up to the month of January, 1913. On the 25th of November, 1912, this plaintiff recovered a judgment of ab

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

solute divorce from the defendant in the court of common pleas of the state of Ohio for the county of Cuyahoga. An exemplified copy of this decree recites the plaintiff had been a resident of Ohio for one year next preceding the filing of the petition, and was a bona fide resident of the county of Cuyahoga. It was based on an allegation that "the defendant was guilty of willful absence from this plaintiff for three years prior to the filing of her petition herein." It further appears that the decree of the Ohio court was obtained, not by the personal service of process upon the defendant within the territorial jurisdiction of the state of Ohio, but upon substituted or constructive service by publication, presumably in accordance with the statutes of that state.

The defendant having failed to pay alimony after the granting of the Ohio divorce, a motion was made by the plaintiff to punish him for contempt. On the hearing of that motion, the defendant contended that the obtaining of an absolute divorce by the plaintiff in the Ohio court relieved him from the further obligation to pay alimony in obedience to the decree of separation in this action. We were of the opinion, however, that the proper practice was for the defendant to make a motion to modify the judgment of separation as to the payment of alimony, and that upon the hearing of that motion the effect of the Ohio decree could be passed on, and the motion to punish for contempt was therefore held until the defendant had an opportunity to make this motion. That he has now done and the force and effect of the Ohio divorce is now before the court for determination.

[1] The plaintiff's counsel contends that the Ohio decree has no extraterritorial effect, in that there was no personal service of process on the defendant, and that the courts of this state cannot and should not recognize its validity for the purpose of, in any way, modifying its own judgments.

If the defendant sought to impeach the validity of the Ohio decree on the ground of want of jurisdiction of the courts of that state to grant it, there would be presented very troublesome questions. He, however, does not question its validity, and it seems to be the rule of law recognized by the courts of this state that, where a party submits himself to the jurisdiction of a court and obtains its decree, he cannot be heard to question the jurisdiction of the court which entered the judgment. Starbuck v. Starbuck, 173 N. Y. 503 at page 506, 66 N. E. 193 (93 Am. St. Rep. 631). In that case, the Court of Appeals said:

"We are of the opinion that the Massachusetts decree was competent and that the defendants had the right to have it received in evidence. True, the plaintiff could not avail herself of a void decree, which she had procured to be entered, any more than she could of her own declarations; but it is different with the defendants. They have the right to avail themselves of the declarations, acts, and decrees obtained by their opponent, and the principle is well established that, where a party has procured a judgment or decree to be entered, submitting himself to the jurisdiction of the court, he cannot thereafter be heard to question the jurisdiction of the court which entered the judgment or decree."

"A party cannot avail himself of a defense or of a right to recover by means of an invalid decree or judgment obtained by him; but, on the other

hand, he may not be heard to impeach a decree or judgment which he himself has procured to be entered in his own favor." 173 N. Y. 508, 66 N. E 194, 93 Am. St. Rep. 631.

This doctrine of estoppel against a party questioning the validity of decrees and judgments obtained at his own instance and procurement has been followed in numerous cases in our courts. Guggenheim v. Wahl, 203 N. Y. 397, 90 N. E. 726, Ann. Cas. 1913B, 201; Van Blaricum v. Larson, 205 N. Y. 360, 98 N. E. 488, 41 L. R. A. (N. S.) 219; Strauss v. Strauss, 122 App. Div. 733, 107 N. Y. Supp. 842; People v. Shrady, 47 Misc. Rep. 335, 95 N. Y. Supp. 991; Voke v. Platt, 48 Misc. Rep. 274, 96 N. Y. Supp. 725; De Kohley v. Fernandez, 58 Misc. Rep. 29, 110 N. Y. Supp. 398; Simmonds v. Simmonds, 78 Misc. Rep. 572, 138 N. Y. Supp. 639. See, also, Davis v. Wakelee, 156 U. S. 689, 15 Sup. Ct. 555, 39 L. Ed. 578.

We must assume, therefore, for the purpose of this motion, that the Ohio decree is valid and binding, at least on the plaintiff, and the only question remaining is: What relief should or can be granted under such circumstances relieving the defendant from the payment of alimony provided by the decree in this action?

[2] At the very outset of the discussion it must be borne in mind that in actions for divorce or separation courts have no power or authority, except such as are conferred by statute. They possess no inherent authority to grant divorce or judicial separations or to award alimony, saving such authority as the Legislature of the state may see fit to confer. Nor may courts modify their decrees in respect to alimony when once fixed by their decrees, unless the Legislature has expressly given them such authority. Erkenbrach v. Erkenbrach, 96 N. Y. 461; Livingston v. Livingston, 173 N. Y. 377, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600; Walker v. Walker, 155 N. Y. 77, 49 N. E. 663; Wilson v. Hinman, 182 N. Y. 411, 75 N. E. 236, 2 L. R. A. (N. S.) 232, 108 Am. St. Rep. 820; Goodsell v. Goodsell, 82 App. Div. 68, 81 N. Y. Supp. 806; Krauss v. Krauss, 127 App. Div. 741, 111 N. Y. Supp. 788; Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061.

[3] We must inquire whether there exists any provision of statute giving this court power to modify its decree. Section 1771 of the Code of Civil Procedure in our opinion confers such authority. It provides that:

"Where an action is brought by either husband or wife, as prescribed in either of the last two articles" (which cover actions for separation as well as for absolute divorce) the court must give "such directions as justice requires, between the parties for the support of the plaintiff."

It further provides:

*

"The court may, by order, upon the application of either party to the action * at any time after final judgment, annul, vary or modify such directions," etc,

The right to modify decrees of separation is recognized in Burton v. Burton, 150 App. Div. 792, 135 N. Y. Supp. 248, Tonjes v. Tonjes, 14 App. Div. 542, 43 N. Y. Supp. 941, and Walker v. Walker, 21 App. Div. 219, 47 N. Y. Supp. 513, reversed, however, in 155 N. Y.