#### Isabel Gouch, *Plaintiff,*v. Chauncey G. Gouch, Defendant.

(Supreme Court, Kings Special Term,

November, 1910.)

Divorce: Actions — Laches or delay: Foreign divorces and allowances — Jurisdiction of foreign court — Want of personal service or notice of appearance.

Limitation of actions — Disabilities and exceptions — Absence.

Neither the period of five years after the discovery of the adultery which forms the ground for an action of absolute divorce, limited for the commencement of such an action by section 1758 of the Code of Civil Procedure, nor the period prescribed by the general Statute of Limitations, runs while the defendant is without the jurisdiction of the court where process may not be personally served upon him.

Where a husband leaves his wife in this State and goes to another State where he acquires a residence, a judgment recovered by him in the latter State without personal service of process upon his wife is invalid.

Action for a divorce.

Langbein & Langbein (Leonard J. Langbein, of counsel), for plaintiff.

Morschauser & Hoysradt (Willet E. Hoysradt, of counsel), for defendant.

Putnam, J.

After the defendant had married the plaintiff within the State of New York in 1819, they lived together *437at Yonkers, and later in Brooklyn, until the fall of 1890, when they separated and the defendant continued to provide for his wife until July, 1891. Some years later, he went to Illinois and, after gaining a local residence, began a suit for divorce in the Superior Court of Cook county. No personal service was made upon the wife, who had no knowledge of the proceeding, and a decree of absolute divorce on the ground of desertion was made upon default on the 19th day of November, 189.7. No service of this decree appears to have been made upon the plaintiff, who continued to reside in this State and to support herself by her own efforts. On the 22d of December, 1897, a marriage was solemnized in Grand Bapids, Mich., between the defendant and one Adele Patton, and it appears that in 1903 the defendant with this wife was living in an apartment as man and wife and have since continued so to live. On the 9th of January, 1909, the plaintiff commenced this action, which was followed later by personal service upon the defendant.

It is entirely clear under the decisions of New York and of the Pederal courts (Olmsted v. Olmsted, 190 N. Y. 158; Haddock v. Haddock, 201 U. S. 562) that the alleged decree of divorce obtained in Illinois is inoperative upon the rights of this plaintiff, who never submitted herself to the jurisdiction of the foreign tribunal.

It is urged, however, that plaintiff cannot maintain this suit so long after the defendant’s remarriage in 1897. It appears that plaintiff heard rumors of defendant’s remarriage and then wrote a letter to her husband on the subject, which was never answered. She then inquired as to the facts from his brother, who declined to give any information on the subject. Plaintiff was first informed definitely of the second marriage at the time of a foreclosure suit in or about 1908, in which her husband and herself, as well as the second wife, were named as defendants.

Even if the inference can be drawn that the plaintiff heard of the marriage at the time it took place, that does not necessarily establish that she had such knowledge of the adulterous intercourse, which followed and continued down to the •commencement of the action as would bar a recovery. I he *438provision of the Code of Civil Procedure (§ 1758) and the rule of court as to such au action being brought within five years after the discovery of the adultery have been construed in Ackerman v. Ackerman, 123 App. Div. 750, in which case the court said (at p. 755) : *“*Or if such a marriage took place, it did not follow that the parties had continued to live together as husband and wife all the years in question. The plaintiff certainly is not shown to have been in possession of such knowledge or information as would have enabled her to have proved a- ease to support an action for divorce until she learned the defendant was living in Baltimore with the corespondent as his wife. Discovery means something more than mere suspicion.”

Furthermore, the obligation to institute au action requires that there should he a defendant within the jurisdiction of this court, and it is clear that under the decisions such au action, where the defendant remained without the State, could not he validly begun except upon the chance of finding him within the State for the purpose of personal service.

Therefore, plaintiff was not barred from bringing her action when she did, either by the terms of section 1758 of the Code or (as is also urged on behalf of defendant) by the general Statute of Limitations.

Judgment for plaintiff.