#### James P. Berney, Respondent, *v.*Benjamin Adriance, Appellant.

First Department,

July 10, 1913.

Criminal conversation — when foreign decree of divorce not valid here — remarriage after invalid divorce is criminal conversation— evidence — sexual relations prior to those alleged in complaint — damages.

A foreign decree of divorce on the ground of desertion and failure to support entered against a resident of this State who had never been a resident of the foreign State on substituted service, is void when he did not appear in the action. Such decree will not be recognized by the courts of this State for any purpose.

Hence, where the plaintiff in such action subsequently remarried, an action against her second husband for criminal conversation may be brought by the first husband.

This is true, although the second marriage took place in another State which may recognize the validity of the foreign divorce.

But in such an action for criminal conversation evidence of sexual relations between the defendant and the plaintiff’s wife prior to the date of those alleged in the complaint is inadmissible.

Where the plaintiff in such action for criminal conversation deserted his wife and refused to support her or his children before and after she . obtained the foreign divorce against him, a verdict of $2,500 is excessive and necessitates a new trial.

Appeal by the defendant, Benjamin Adriance, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes in an action for criminal conversation.

*George O. Redington,*for the appellant.

*Charles R. Bradbury,*for the respondent.

Dowling, J.:

The plaintiff was married to Jean M. Purdy September 1, 1883, in the city of Corry, State of Pennsylvania. Thereafter they removed to the State of New York, where they resided *629together until April, 1902, at which time, upon the testimony herein, it sufficiently appears that the plaintiff abandoned his wife, removing to other apartments in the city of Brooklyn, where they then resided, and telling her when she called upon btm with the then two living children, issue of the marriage, that she could keep them, as they loved her more than they did him. Plaintiff did not contribute to his wife’s support, and in September or October,-1902, she removed to Sioux Falls, S. D., where she rented rooms and remained for a year or more, with the exception of three months spent in Mew York city after the Christmas holidays, On May 23, 1903, she commenced an action in the State of South Dakota against her husband for absolute divorce upon the ground of his desertion and failure to support her. A final decree therein was entered July 10,1903.. The husband never had been a resident of, nor within, the State of South Dakota, and an order for substituted service was made May 29, 1903, pursuant to which the summons and complaint in said action were personally served upon him in the city of Mew York on June 8, 1903. He entered no appearance in the action, and caused no pleading to be served therein on his behalf, and the judgment against him was obtained on his default. In September, 1903, Mrs. Berney returned to Mew York State and remained there until July, 1909, when she changed her residence to the State of Mew Jersey, wherein she resided continuously until March 12, 1910. On that date she was married at Hackensack, in the State of Mew Jersey, by a justice of the peace, to the defendant Benjamin Adriance, whose wife had died some four days before, and from whom he had been separated some ten years prior to her decease. The parties resided in the State of Mew Jersey until they removed to the borough of Brooklyn, in the State of Mew York, about Christmas, 1911. The complaint herein is based upon allegations of improper intimacy-between the defendant and Mrs. Berney between June, 1909, and the time of the commencement of the action, the places specified being Woodcliff, M. J., andBrooklyn, M. Y. The month of June, 1909, is the date when Mrs. Berney went over to Mew Jersey and took up her residence in premises owned by the defendant before her marriage to him. Upon the trial of the action evi*630dence was received, over the objection of the defendant, as to prior acts of intimacy between them before the time alleged in the complaint. The verdict was in the following form: “We find a verdict for the plaintiff in the nominal amount of $2,500.” We think, upon this record, that it must be determined that the divorce obtained by Mrs. Bemey from her husband in South Dakota was invalid, and that in so far as the plaintiff herein was concerned it had no binding force or effect within this State, nor will the courts of this State in any manner recognize it as effectual for any purpose in this jurisdiction. There is a long line of cases wherein the courts of this State have declined to recognize as valid a decree of divorce obtained in another jurisdiction against a citizen and resident of this State, where he had neither appeared nor answered in the action, and where no personal service had been made upon him within that jurisdiction. Among those were *People*v. *Baker*(76 N. Y. 78); *O’Dea*v. *O’Dea*(101 id. 29); *Jones*v. *Jones*(108 id. 415); *Cross*v. *Cross*(Id. 628); *Bell*v. *Bell*(157 id. 719); *Lynde*v. *Lynde*(162 id. 412); *McGown*v. *McGown*(164 id. 558); *Winston*v. *Winston*(165 id. 553).

The cases in this State have been summarized in *Haddock*v. *Haddock*(201 U. S. 562) and the general proposition seems to have been incontrovertibly established since that time. In *Ransom*v. *Ransom*(54 Mise. Rep. 410) the plaintiff in the divorce action had been driven from her husband’s home by reason of his misconduct, and she and her children became in good faith residents of the State of Virginia. Of that State she had been an actual resident for more than two years, when she obtained within that State, and pursuant to its laws, a judgment of absolute divorce upon the ground of the defendant’s adultery. The service of process in that action was by publication, and the defendant neither appeared nor answered therein. It was there proved that the defendant had actual knowledge of the issuance of the decree, and had procured a copy thereof before his time to intervene and have the default opened had expired. More than four years thereafter the plaintiff married in the State of Virginia, and despite the fact that she had been the innocent party throughout, that her residence in Virginia was taken up as a matter of necessity and in good faith, because she had *631been driven from her husband’s home by reason of his misconduct, and although she had continuously been a resident thereof down to the time of the bringing of the husband’s action, nevertheless the latter was successful in his suit for an absolute divorce brought in this State and based upon the alleged adultery committed with the husband whom she had married in the State of Virginia. The determination of the court proceeded upon the doctrine that where the defendant in a divorce action is not domiciled in the State where the suit is brought, does not appear therein and is only constructively served with process, no actual service being made within the State, the court acquires no jurisdiction. Upon appeal to this court the judgment was affirmed (125 App. Div. 915). I am unable to find any decision Which has qualified or limited this statement of the law. It follows, therefore, that the South Dakota decree, in the eyes of the courts of this State, is invalid, and that the marriage of the defendant and Mrs. Bemey thereunder is no answer to the plaintiff’s action, even though the courts of the State of New Jersey, under their decision, might recognize the South Dakota decree as binding upon a citizen of that State under these circumstances, for in this State we have refused to recognize the validity of a marriage solemnized in the State where the decree of divorce was obtained, and which, under the laws of that State, was a perfectly valid and binding one. (See *McGown*v. *McGown,*19 App. Div. 368; affd., 164 N. Y, 558.)

I believe, however, that this verdict, if it really represents the deliberate action of the jury which rendered it, is excessive in view of all the circumstances of the case. Having in mind the fact that plaintiff had voluntarily abandoned his wife eight years before her attempted marriage with the defendant, had never contributed to her support, had never sought a reconciliation with her, and had left her and her children to shift for themselves as best they could, no foundation has been established for any such amount of recovery, particularly as defendant is not shown to have been in any way responsible either for the original separation or its continuance, with both of which plaintiff solely is chargeable. Nominal damages are defined as “a trifling sum awarded to a plaintiff in an action where *632there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant’s duty.” (Black Law Diet.) These are formal damages as distinguished from real or substantial ones. Awards of six cents or $1 represent nominal damages. When such an award as $2,500 is made it has none of the characteristics of a nominal one but assumes the proportions of compensation. If the jury thought that they were awarding really only nominal damages, then their verdict was based on error, and should in any event have been set aside. If they sought to award compensation, the amount granted was excessive and should also have been set aside. From every point of view the defendant is entitled to a new trial. Furthermore, error was committed in receiving, over due objection, testimony as to the relations existing between the defendant and Mrs. Berney prior to June, 1909, the first date set forth in the complaint when such relations are claimed to have existed. It is sought to sustain the admission of this testimony upon various grounds, none of which we believe is sufficient. The sole issue presented by the pleadings was that of the relations had between the parties after June, 1909. As their relationship after the attempted marriage between them was avowedly a marital one, no testimony as to what had transpired between them before that time was either necessary or admissible to characterize it, for its nature was open and avowed.

‘ The judgment and order appealed from will, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Olabke, Scott and Hotchkiss, JJ., concurred; Ingraham, P. J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.