292, 8 Sup. Ct. 1375, 32 L. Ed. 239, "are not changed by recovering judgment upon it, and the technical rules with regard to the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court, to which a judgment is presented for affirmative action (while it cannot go behind the judgment for the purpose of examining into the validity of the claim), from ascertaining whether the claim is really one of such a nature that the court is authorized to enforce it."

The Massachusetts action was brought under a statute of that state (R. L. c. 99, §§ 4 and 6) to recover moneys paid to the defendants, who were stockbrokers, on account of stock transactions had with them by the plaintiff. The pertinent parts of the statute are as follows:

"Sec. 4. Whoever upon credit or upon margin contracts to buy or sell, or employs another to buy or sell for his account, any securities or commodities, intending at the time that there shall be no actual purchase or sale, may sue for and recover in an action of contract from the other party to the contract, or from the person so employed, any payment made, or the value of anything delivered, on account thereof, if such other party to the contract or person so employed had reasonable cause to believe that said intention existed; but no person shall have a right of action under the provisions of this section if, for his account, such other party to the contract or the person so employed makes, in accordance with the terms of the contract or employment, personally or by agent, an actual purchase or sale of said securities or commodities, or a valid contract therefor."

"Sec. 6. In a proceeding under the provisions of the two preceding sections, the fact that the seller or the person employing another to sell for his account did not own the securities or commodities at the time of the contract of sale or at the time of the giving of the order to sell, and the fact that settlements were made without the completion of the purchase or sale of the securities and commodities bought or sold or ordered to be bought or sold, shall each be prima facie evidence that within the meaning of section four there was an intention that there should be no actual purchase or sale, and that there was reasonable cause to believe that said intention existed; and the parties liable to an action under the provisions of said section shall be jointly and severally liable."

The defendants were stockbrokers doing business in Boston, and the recovery was for an amount concededly deposited by the plaintiff with the defendants, together with interest. The court found that the intention mentioned in the statute existed, and that actual purchases or sales were not made by the defendants, nor were valid contracts, within the meaning of the statute, entered into by them. The plaintiff did show upon the trial in the Massachusetts court, and it is conceded here, that during the transactions the defendants paid to the plaintiff the sum of $17,486.38, which was to be charged to the plaintiff's account with the defendants, and it is because of these payments, which, if allowed as a credit or offset, would have reduced the recovery in Massachusetts to about $5,600, with proper interest, that the defendants contend that the Massachusetts statute, as interpreted by the Massachusetts court, imposes a penalty. To put the defendants' contention in another way, it is their claim that the plaintiff, except for a slight amount of interest, has already been put back in the position in which he would have been, had he never had any transactions with the defendants, and that therefore, except for a small amount of interest, he has already been fully compensated, and the attempt

to recover about $25,000 now upon the Massachusetts judgment is in no sense an attempt to recover compensation, and therefore that the Massachusetts judgment must be considered a judgment for a penalty.

[3] Crimes and offenses against the laws of any state can only be defined, prosecuted, and pardoned by the sovereign authority of that state, and the authorities, legislative, executive, or judicial, of other states take no action with regard to them, except by way of extradition, to surrender offenders to the state whose laws they have violated and whose peace they have broken. Huntington v. Attrill, 146 U. S. 657, 663, 13 Sup. Ct. 224, 36 L. Ed. 1123. This general principle has been stated by Chief Justice Marshall in The Antelope, 10 Wheat. 66, 123, 6 L. Ed. 268, in the sentence, "The courts of no country execute the penal laws of another." But it is pointed out in Huntington v. Attrill, supra, that there is danger of being misled by the different shades of meaning allowed to the word "penal" in our language, and that it is only a judgment founded upon a statute which is penal in an international sense to which due faith and credit need not be given. Thus it is there stated that an action to recover punitive damages, or double or treble damages, provided the recovery is for the benefit of one injured, is not penal, even though it is more than compensatory, but is remedial. Huntington v. Attrill, supra, 146 U. S. 667, 668, 13 Sup. Ct. 224, 36 L. Ed. 1123. A number of cases are there cited in support of this contention. On the other hand, qui tam actions, actions by a common informer, may stand on the same ground as suits brought for a penalty in the name of the state or its officers, and are penal in the international sense; that is, the actions are brought to enforce the criminal law of the state. Huntington v. Attrill, supra, 146 U. S. at pages 667 and 673, 13 Sup. Ct. 224, 36 L. Ed. 1123. And finally in the same case the test is laid down as follows (146 U. S. 673, 13 Sup. Ct. 230 [36 L. Ed. 1123]):

"The question whether a statute of one state, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to punish an offense against the public justice of the state or to afford a private remedy to a person injured by the wrongful act."

Applying to the instant case this test, as illustrated by the Supreme Court of the United States in the very case where the rule is laid down, the Massachusetts judgment, although penal in the sense that it is more than compensatory, nevertheless is for the benefit of the person wronged, redresses his private grievance, as distinguished from a public wrong, and is not penal in an international sense. Carpenter v. Beal, McDonnell & Co. (D. C.) 222 Fed. 453; Gruetter v. Cumberland Telephone & Telegraph Co. (C. C.) 181 Fed. 248; Interstate Co. v. Wyatt (Colo. Sup.) 164 Pac. 506, affirming 27 Colo. App. 217, 147 Pac. 444.

[4,5] I have not overlooked the argument based upon the principle, laid down in Wisconsin v. Pelican Insurance Co., supra, that the merging of the cause of action in the judgment does not alter the obligation of the state to enforce the plaintiff's right, taken in connection with the principle, enunciated by our own courts, that actions founded

upon foreign statutes which create a liability against a citizen, or grant a remedy unknown to the common law, or contrary to the declared policy of our state, will not be enforced in our courts. Marshall v. Sherman, 148 N. Y. 9, 42 N. E. 419, 34 L. R. A. 757, 51 Am. St. Rep. 654; Hutchinson v. Ward, 192 N. Y. 381, 85 N. E. 390, 127 Am. St. Rep. 909. The answer to this argument is that in this case the court is concluded by the interpretation of the faith and credit clause of the Constitution by the Supreme Court of the United States. Where the action is brought as an original matter in our courts upon a foreign statute, our courts may exercise their independent judgment as to whether the statute shall or shall not be enforced; but where it is founded upon a foreign judgment, based upon such foreign statute, it must accept the interpretation of the federal Constitution by the Supreme Court of the United States, and enforce the judgment, even though it is based upon a statute which is contrary to the declared policy of our state. A striking example of this is Fauntleroy v. Lum, 210 U. S. 230, 28 Sup. Ct. 641, 52 L. Ed. 1039, where a citizen of Mississippi was sued in Missouri upon a Mississippi statute, and a judgment rendered upon an interpretation of the statute contrary to that adopted by the Mississippi courts. An action was then brought upon the Missouri judgment in Mississippi, and the Supreme Court held that the full faith and credit clause of the Constitution required the Mississippi court to allow a recovery upon the Missouri judgment. It is, therefore, not open to this court to inquire whether or not the interpretation of the Massachusetts judgment is in accordance with our declared policy.

[6] The defendants also set up two counterclaims which are entitled to consideration: First, for a recovery of the $17,486.38, the aggregate of payments made by the defendants to the plaintiff during the transaction between the parties, and not allowed as a credit by the Massachusetts court. The defendants contend that, if they are obligated to return the entire amount of the deposit for which recovery has been allowed, the money paid to the plaintiff by the defendants during the transactions was had and received by the plaintiff to the defendants' use. The Massachusetts court declined to find that these payments were a return of any part of the original deposit. The Massachusetts court also specifically refused to find that there were any valid sales or purchases made or contracts entered into. These rulings were essential to the judgment. In the instant case no evidence is here before the court on this subject which was not also before the Massachusetts court. For the purposes of this suit it must be deemed adjudicated that the transactions between the parties were illegal, and no affirmative cause of action can be based on the payment of money thus growing out of illegal transactions.

[7, 8] The second counterclaim is for repayment to the defendants of the losses which were made in the account upon the plaintiff's orders. Here again the principle of res judicata is fatal to the defendants' contention. As I have already pointed out, the Massachusetts court has determined that no valid sale or purchase was made by the defendants, or valid contract entered into. Under the Massachusetts law, no loss therefore was sustained, and, even though the interpreta

tion of the New York law by the Massachusetts court was erroneous, being essential to its judgment, it is binding upon this court. Fauntleroy v. Lum, supra.

The plaintiff, therefore, is entitled to judgment for the amount demanded, with costs, against all the answering defendants, except the defendants Sellers and Geer, who are entitled to judgment against the plaintiff, dismissing the complaint as to them, with costs.

BECKERMEISTER v. BECKERMEISTER.

(Supreme Court, Special Term, Kings County. April 15, 1918.) 1. MARRIAGE

33-CONSUMMATION.

Where cohabitation between a husband and wife has taken place at the husband's apartment for five or six days following a marriage ceremony, the court will find as a fact that the marriage was consummated. 2. MARRIAGE 60(3)—ANNULMENT-EQUITY JURISDICTION.

The Supreme Court is clothed with inherent power to annul a marriage induced by fraud, because of its equity jurisdiction.

A wife, who has been induced by her husband to enter into marriage, so that he might be released from prison, wherein he was confined on his wife's charge in bastardy proceedings, cannot have the marriage annulled on the ground of the husband's fraud in representing that he would act as a husband to his wife, where he subsequently abandoned her; the representation not being as to an existing, but to a future, fact.

Suit by Helen Beckermeister against Max Beckermeister for annulment of marriage. Complaint dismissed.

Greenthal & Greenthal, of New York City, for plaintiff.
Solomon Schwartz, of Brooklyn, for defendant.

BENEDICT, J. Among the many pretexts upon which, in recent years, it has been sought to annul the marriage relation, none has had less foundation or justification than that which is shown in the present case. The action is for annulment on the ground of fraud on the man's part. The fraud is predicated upon his alleged misrepresentations, which induced the woman to marry him. The case was practically undefended at the trial, because, although the defendant had interposed an answer in which he denied the material facts of the complaint, he offered no evidence.

The complaint alleged that the parties had kept company before their marriage and that a child was born to them. Thereupon the plaintiff caused the arrest and imprisonment of the defendant in filiation proceedings, and, while the defendant was incarcerated in the City Prison upon the plaintiff's complaint, the defendant, for the purpose of inducing the plaintiff to enter into a marriage with him, falsely and fraudulently represented to her that he would be a husband to her, and would properly support the plaintiff and the child, if thereby he could obtain his release from jail. Relying upon this representation, the plaintiff married the defendant before one of the aldermen of the city

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of New York, the defendant being temporarily released from the jail and accompanied to the City Hall by a deputy sheriff, so that the ceremony could take place, and upon such marriage being solemnized he secured his release. It was further alleged that thereupon the plaintiff and the child went to live with the defendant at his apartment, and remained there for five or six days, after which he abandoned her. It is upon this state of facts that the plaintiff claims that the marriage should be annulled for fraud.

[1] The plaintiff testified that the marriage was not consummated; but as there was undisputed evidence of cohabitation at the defendant's apartment for five or six day following the marriage ceremony, and as the parties were there known as husband and wife, the court finds as a fact that the marriage was consummated by the parties (see Wilcox v. Wilcox, 46 Hun, 32, 37), and also that it was ratified by the defendant after the duress (if any there were) had ceased to operate; and it also finds that the marriage, the validity of which the defendant does not deny, was not affected by any secret intention or mental reservation on his part, which was unknown to the plaintiff at the time, and the existence of which by his answer he distinctly repudiates.

It not infrequently happens that the husband in a similar plight to that in which the defendant found himself comes into court for relief from the bonds of matrimony, and the court will grant him relief in a proper case. See Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 67 N. E. 63, 63 L. R. A. 92, 95 Am. St. Rep. 609. But so far as I am aware this is the first case in which the wife, after inducing the husband to enter into the marriage contract through the instrumentality of judicial proceedings, has complained that she was misled by his misrepresentations concerning his mental attitude toward her, or has sought an annulment of the marriage on account of the representations which she herself has been the cause of his making. The representation in question was not as to an existing fact, such, for example, as a legal or physical impediment to the marriage. It was at most a promise as to future conduct, and it added nothing to the contract as to future conduct which the law infers from marriage.

It is, of course, true that fraudulent misrepresentation inducing a marriage is a wrong which may be remedied by an action, the amount of damages recoverable depending upon the circumstances of the particular case (Kujek v. Goldman, 150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St. Rep. 670); and it is also true that the defendant who has, by false representations, procured a marriage between himself and the plaintiff, when by law he was not competent to enter into the marriage contract, is liable to her in damages, and she may maintain an action against the fraudulent husband without first procuring a formal annulment of the marriage (Blossom v. Barrett, 37 N. Y. 434, 97 Am. Dec. 747); but it certainly is a novel proposition to say that a marriage could be nullified at the suit of the wife upon the ground of fraud merely because the man upon whom it had been imposed endeavored thereafter to evade the obligations which he had reluctantly assumed. Such a conclusion would be too far-reaching in its effect.