Auten_v._Auten 奥丁诉奥丁案判决书

MARGARITE AUTEN, Appellant, v. HAROLD AUTEN, Respondent.Court of Appeals of New York308 N.Y. 155; 124 N.E.2d 99; 1954 N.Y. LEXIS 930; 50 A.L.R.2d 246Argued October 22, 1954.December 31, 1954, decidedPRIOR HISTORY: [***1]Auten v. Auten, 281 App. Div. 740, reversed.APPEAL from a judgment, entered December 1, 1953, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which (1) affirmed an order of the Supreme Court at Special Term (SCHREIBER, J.), entered in New York County, granting a motion by defendant for summary judgment dismissing the complaint and (2) granted leave to serve an amended complaint. (See 306 N.Y. 752.)DISPOSITION: LEWIS, Ch. J., CONWAY, DESMOND, DYE, FROESSEL and VAN VOORHIS, JJ., concur.Judgments reversed, etc.HEADNOTES: Conflict of laws - husband and wife - repudiation of separation agreement - (1) wife and husband entered into separation agreement in New York providing that husband pay stated amount monthly for support of wife and children, that neither should sue in any action relating to separation, and that wife should not sue in any jurisdiction by reason of prior Mexican divorce; thereafter wife sued for separation in England; action herein by wife to recover arrears due her under agreement; husband's motion for summary judgment based on defense that wife's separation action in England operated as repudiation ofagreement, [***2] denied; law of England applicable and thereunder issue exists as to effect of commencement of separation action on separation agreement - (2) under "grouping of contacts" theory of conflict of laws, English law would be applied - (3) parties could not have expected that law other than English law would be applied - (4) moreover, under rule that matters of performance and breach are governed by law of place of performance, English law would control - (5) husband's contention that wife's commencement of English action amounted to breach of her covenant not to sue also governed by English law.1. Defendant husband, who had procured a Mexican divorce, and plaintiff wife entered into a separation agreement in 1933 in New York providing that the husband pay a stated amount monthly to a New York trustee for the account of hiswife, for the support of herself and their children; that neither should sue "in any action relating to their separation", and that the wife should not "cause any complaint to be lodged against * * * [the husband], in any jurisdiction, by reason of the said alleged divorce". Immediately after the signing of the agreement, the wife returned to England, where she [***3] has since lived with the children. In 1934, the wife filed a petition for separation in an English court, but the action never proceeded to trial. In 1947, the wife brought the present action to recover arrears allegedly due her under the agreement. Since the law of England must be applied, and since, at the least, an issue exists whether the courts of that country treat the commencement of a separation action as a repudiation of an earlier-made separation agreement, the husband's motion for summary judgment, based on his defense of an alleged repudiation by the wife of the separation agreement, should not have been granted.2. The "center of gravity" or "grouping of contacts" theory of the conflict of laws emphasizes the law of the place which has the most significant contacts with the matter in dispute. Examination of the respective contacts with New York and England indicates that the English law should be applied to determine the effect to be given the wife's institution of the separation suit in England. The parties were married in England, had children there and lived there as a family for fourteen years. The husband allegedly had willfully deserted and abandoned the [***4] wife and children in England, and was in this country on a temporary visa when the agreement was signed. The sole purpose of the wife's trip to New York was to arrange for defendant to agree to support his family, and she returned to England immediately after the agreement was executed. The agreement, effecting a separation between British subjects, was drawn with an understanding that the wife and children would live in England. The only relation of this state with the matter is that it is the place where the agreement was made and where the trustee had his office.3. The parties could not have expected or believed that any law other than that of England would govern the effect of the wife's institution of a separation action.4. If the rule that matters of performance and breach are governed by the law of the place of performance should be applied, the law of England would still control.5. The husband's contention that plaintiff's commencement of the English action amounted to a material breach of his wife's covenant not to sue, barring recovery on the agreement, is also governed by English law.COUNSEL:Michael Alexander, Bernard B. Smith and Leonard H. Steibel [***5] for appellant. I. The effect of the English separation action uponthe separation agreement must be determined in accordance with the rule of law applied by the English courts. ( Rennie v. Rennie, 287 N.Y. 86; Lynde v. Lynde, 41 App. Div. 280, 162 N.Y. 405, 181 U.S. 183; Swift & Co. v. Bankers Trust Co., 280 N.Y. 135; Myles v. Cuba R.R. Co., 182 Misc. 169; Lann v. United States Steel Works Corp., 166 Misc. 465; Matter of Palmer, 192 Misc. 385, 275 App. Div. 792; Graham v. First Nat. Bank of Norfolk, 84 N.Y. 393; Hutchinson v. Ross, 262 N.Y. 381.) II. Even assuming, arguendo, that the effect of the English separation action upon the separation agreement must be determined in accordance with the rule of law applied by the courts of New York, the judgment of the Appellate Division affirming Special Term cannot be sustained. ( Woods v. Bard, 285 N.Y. 11; Krell v. Krell, 192 Misc. 1; Clark v. Kirby, 243 N.Y. 295; Dimick v. Dimick, 230 App. Div. 99; Van Horn v. Van Horn, 196 App. Div. 472; Chamberlain v. Cuming, 37 Misc. 815; Estin v. Estin, 296 N.Y. 308, 334 U.S. 541; [***6] Gifford v. Corrigan, 117 N.Y. 257; Rosmarin v. Rosmarin, 238 App. Div. 798; De Brauwere v. De Brauwere, 203 N.Y. 460; Patino v. Patino, 195 Misc. 887, 278 App. Div. 756, 278 App. Div. 921.)Saul Hammer for respondent. I. The separation agreement sued upon is governed by the law of the State of New York. ( Bitterman v. Schulman, 265 App. Div. 486; Stumpf v. Hallahan, 101 App. Div. 383, 185 N.Y. 550; Vander Horst v. Kittredge, 229 App. Div. 126; Aronson v. Carobine, 129 Misc. 800; Rennie v. Rennie, 287 N.Y.86.) II. The law of the contract also governs the interpretation and legal effect of any acts urged as a defense or discharge of the agreement. ( Benton v. Safe Deposit Bank, 255 N.Y. 260; Pritchard v. Norton, 106 U.S. 124.) III. The law of domicile does not govern. ( Vander Horst v. Kittredge, 229 App. Div. 126; Graham v. First Nat. Bank of Norfolk, 84 N.Y. 393; Hutchinson v. Ross, 262 N.Y. 381.) IV. Appellant repudiated the agreement sued upon by instituting suit against respondent for judicial separation. ( O'Brien v.O'Brien, 252 App. Div. 427; [***7] Hettich v. Hettich, 278 App. Div. 518; Woods v. Bard, 285 N.Y. 11; Krell v. Krell, 192 Misc. 1; Schmelzel v. Schmelzel, 287 N.Y. 21; Dimick v. Dimick, 230 App. Div. 99; Van Horn v.Van Horn, 196 App. Div. 472.) V. In any event, appellant's breach of the covenants of the agreement barred any subsequent recovery thereunder. ( Duryea v. Bliven, 122 N.Y. 567; Haskell v. Haskell, 207 App. Div. 723; Muth v. Wuest, 76 App. Div. 332; Matter of Noel, 173 Misc. 844; Cole v.Addison, 153 Ore. 688; Harwood v.Harwood, 182 Misc. 130; Roth v.Roth, 77 Misc. 673; Schmidt v. Schmidt, 74 Misc. 423.) VI. No rights survive to appellant after her repudiation of the separation agreement.OPINION BY: FULDOPINION: [*158] [**100] FULD, J. In this action to recover installments allegedly due for support and maintenance under a separation agreement executed in this state in 1933, the wife's complaint has been dismissed, on motion for summary judgment, upon the ground that her institution of an action for separationin England constituted a repudiation and a rescission of the agreement under New [***8] York law. Determination of the appeal, involving as it does a question of conflict of laws, requires examination of the facts disclosed by the papers before us.意见如下：[* 158][*100]富尔德在这次行动中，J.恢复分期据说是由于在这种状态下执行的分离协议，在1933年的支持和维护下，妻子的投诉已被驳回，在运动的简易判决在地上，她的机构分离在英国的行动构成的协议根据新[***]纽约法律的否定和撤销。