APPEAL by the defendant, Baron Raoul de Graffenried, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of September, 1911, overruling the defendant's demurrer to the second cause of action alleged in the complaint.
Thomas P. de Graffenried, for the appellant.
Howard Thayer Kingsbury, for the respondent.
INGRAHAM, P. J.:
The defendant demurred to the second cause of action set up in what is called the amended and supplemental complaint, which seems to be the only complaint in the action and on which plaintiff seeks to recover. The ground of demurrer is stated to be that the second alleged cause of action contained in the amended and supplemental complaint herein does not state facts sufficient to constitute a cause of action. It is alleged in this second cause of action that the plaintiff, who was a resident and citizen of the State of New York, was married at the city of Paris in the republic of France to the defendant, where he then resided, on the 17th of April, 1901; that on October 30, 1903, after her marriage, plaintiff purchased certain real property situated in the city and county of New York, which is specifically described in the complaint; that subsequently the plaintiff executed and delivered to the defendant a conveyance of an undivided one-half interest in said premises, which conveyance bears date November 4, 1903, and was duly recorded in the office of the register of New York county; that said conveyance was absolute in form and purports to convey to the defendant, the grantee therein mentioned, an undivided one-half interest in said property in absolute ownership, but was executed and delivered by plaintiff without consideration; that in the year 1908, the defendant, who was then residing in the canton of Geneva, in the republic of Switzerland, brought an action in the Court of First Instance in and for said republic and canton, being a court having jurisdiction in the premises, against the plaintiff
herein for a divorce on the ground of malicious desertion and grave injuries under the law of said republic and canton; that the plaintiff (being the defendant in said action for divorce) appeared therein and demanded a divorce in her favor against her husband (the defendant herein) on the ground of grave injuries under the law of said republic and canton; that said action was duly tried in said court, and on or about December 13, 1910, said court denied the divorce applied for by the husband (the defendant herein), and granted a divorce in favor of the wife (the plaintiff herein), upon the ground of grave injuries under the law of said republic and canton, and that no appeal was taken from that judgment; that prior to and since the marriage of the parties to this action, it was the law of the republic of Switzerland that the relative property rights of divorced spouses are governed by the law of the canton to the jurisdiction of which the husband was subject, and that prior to and since the marriage of the parties the defendant has been and still is a citizen of the canton of Berne and subject to its jurisdiction; that prior to said marriage and since that time and at present the law of the canton of Berne is, that all property belonging to a wife at the time of her marriage and all property acquired by her during the marriage by gift, inheritance or will, passes under the management and control of the husband, and that at all times during the marriage the husband is and remains accountable to the wife for the value of all such property and of all property transferred by her to him, and that upon a divorce the husband is under an obligation to return to the wife all property given, transferred or conveyed by her to him during the marriage or otherwise contributed by her to the conjugal assets; and that the law of the republic of France, where said marriage was celebrated, and the law of the canton of Geneva, where said divorce was granted, is that the party against whom the divorce was granted must return to the other party all property or benefits given by said other party to the party against whom the divorce was granted, either by marriage contract or subsequent gift or conveyance.
On these facts the plaintiff demands a judgment that the
conveyance of the said undivided one-half interest in said premises described in the complaint be canceled and set aside, or that said conveyance be reformed so that the defendant have and hold the premises therein conveyed to him for and during his natural life, or until he and plaintiff cease to live together as husband and wife, and that upon such death or separation said half interest shall revert to and vest in the plaintiff, if then living, and if not, then that it shall revert to and vest in the children of said plaintiff by her former marriage; that the court determine that the plaintiff and defendant have ceased to live together as husband and wife, and that the defendant has not now and has not had since March 1, 1906, any right, title or interest to or in or claim upon said premises or said half interest therein, and that the defendant be directed forthwith to execute and deliver to the plaintiff a reconveyance of said half interest in said premises, and for other relief.
Under the allegations of this cause of action, the plaintiff, who was a citizen of this State, married with the defendant, who was a subject of the republic of Switzerland, this marriage having been consummated in the city of Paris, in the republic of France. The question as to whether the law of Switzerland or the law of France controlled as to the rights acquired by the parties to that marriage is not material at this time. It is not alleged whether the parties subsequent to the marriage did or did not reside in France or acquire there a matrimonial domicile. What the plaintiff seeks to do is to import into the rights of these parties as affecting real property the law either of France or of Switzerland, so as to affect or qualify the title to real property within this State, or impose upon the grantee of real property within this State an obligation to transfer or convey it, by reason of the rights acquired by the parties to a matrimonial alliance entered into in a foreign country. Nor is the question presented as to the rights of the parties in relation to personalty, whether located in this State, of which the plaintiff was at the time of her marriage a citizen, or in either the republic of France or the republic of Switzerland.
The plaintiff, having been married in France to a citizen of Switzerland, with her own money subsequently acquired real property within this ...