Court of Appeals of the State of New York

Johnston v. Comp. Generale Transatlantique

Argued March 30, 1926

382 Decided May 4, 1926 *382

Appeal from the Supreme Court, Appellate Division, First Department.

383 Joseph P. Nolan, Edward J. Garity and Arthur K. Kuhn for appellant. *383 Sol. Boneparth, Moses Feltenstein,
Abraham Rosenstein and Harry A. Dubinsky for respondent.

POUND, J.

The controversy arises over an alleged wrongful delivery of goods by the defendant, a steamship carrier, which
is a foreign corporation organized under the laws of the Republic of France. Plaintiff is the assignee of triplicate
bills of lading issued in New York, under which one Frank E. Webb shipped the goods from New York to
Havre. Defendant delivered the goods to other parties upon presentation of a non-negotiable copy of the bill of
lading which Webb retained as an office copy not used for presentation to secure the delivery of the goods.

Defendant set up as a defense an adjudication of the Tribunal of Commerce at Paris in favor of defendant upon
the same cause of action, in an action brought by plaintiff thereon and established on the trial that the French
judgment was the final judgment on the merits of a court of competent jurisdiction. No attempt was made to
impeach it for fraud.

384 The courts below refused to give effect to the French *384 judgment on the authority of Hilton v. Guyot ( 159
U.S. 113), decided in 1895, for the reason that by the law of France no foreign judgment can be rendered
executory in France without a review of the judgment au fond, that is, of the whole merits of the cause of action
on which the judgment rests; that for want of reciprocity the courts of this State are not bound by the judgment
but will, in their discretion, examine the rights of the parties as fully and absolutely as if the matter had never
been submitted to the French court; and that on the merits the French judgment was contrary to the principles
of our law and should be disregarded.

The New York rule was stated in Dunstan v. Higgins ( 138 N.Y. 70), decided in 1893, as follows:

"It is the settled law of this State that a foreign judgment is conclusive upon the merits. It can be impeached
only by proof that the court in which it was rendered had not jurisdiction of the subject matter of the action or
of the person of the defendant, or that it was procured by means of fraud. * * * The judgments of the courts of a
sister State are entitled to full faith and credit in the courts of the other States under the Constitution of the
United States, but effect is given to the judgments of the courts of foreign countries by the comity of nations
which is part of our municipal law. The refusal of the foreign court to allow a commission to examine witnesses
here does not affect the conclusive character of the judgment. Such applications are generally within the
discretion of the court to which they are addressed and then a refusal to grant them does not constitute even a

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 Johnston v. Comp. Generale Transatlantique 152 N.E. 121 (N.Y. 1926)

legal error subject to review. But even if it appeared in this case, as it does not, that some legal right of the
defendant was denied in refusing the application that would not affect the validity or conclusive nature of the
judgment, so long as it stood unreversed and not set aside. Legal errors committed upon the trial or during the
385 progress of the cause may be corrected by appeal or *385 motion to the proper court, but they furnish no
defense to an action upon the judgment itself. Where a party is sued in a foreign country, upon a contract made
there, he is subject to the procedure of the court in which the action is pending, and must resort to it for the
purpose of his defense, if he has any, and any error committed must be reviewed or corrected in the usual way.
So long as he has the benefit of such rules and regulations as have been adopted or are in use for the ordinary
administration of justice among the citizens or subjects of the country he cannot complain, and justice is not
denied to him. The presumption is that the rights and liability of the defendant have been determined according
to the law and procedure of the country where the judgment was rendered."

This is the modern English doctrine and the doctrine of some, at least, of our State courts. ( Lazier v. Westcott,
26 N.Y. 146; Konitzky v. Meyer, 49 N.Y. 571, 576; MacDonald v. Grand Trunk Ry. Co., 71 N.H. 448; Nouvion
v. Freeman, 15 App. Cas. 1, 9; Godard v. Gray, L.R. 6 Q.B. 139-148) and has the approval of recent textbook
writers. (3 Freeman on Judgments, 3069.)

In Hilton v. Guyot the action was brought on a foreign judgment, rendered by the same court in which the
judgment herein was rendered. The opinion of Judge GRAY, after an exhaustive review of the subject, while
fully recognizing the general rule as stated, lays down the collateral and qualifying rule that on principles of
comity judgments rendered in France, by whose laws judgments of the United States courts are reviewable on
their merits, are not conclusive when sued upon in the United States and are only prima facie evidence of the
justice of plaintiff's claim. FULLER, Ch. J., wrote a dissenting opinion in which HARLAN, BREWER and
JACKSON, JJ., concurred. He says (p. 233):

386 "In any aspect, it is difficult to see why rights acquired *386 under foreign judgments do not belong to the
category of private rights acquired under foreign laws. Now the rule is universal in this country that private
rights acquired under the laws of foreign states will be respected and enforced in our courts unless contrary to
the policy or prejudicial to the interests of the state where this is sought to be done; and although the source of
this rule may have been the comity characterizing the intercourse between nations, it prevails today by its own
strength, and the right to the application of the law to which the particular transaction is subject to a juridical
right."

No case has previously arisen in this State which necessarily involved the consideration of Hilton v. Guyot. The
question here presented may be regarded as an open one in this court. CULLEN, Ch. J., said in Grubel v.
Nassauer ( 210 N.Y. 149, 151) (by way of dictum, for the question was as to the jurisdiction of the foreign
court): "The judgments of the courts of no country have, necessarily, any extraterritorial effect. When they are
enforced in a foreign country, which as a rule they are to a certain extent, it is solely by virtue of comity. The
elaborate review of this subject by the Supreme Court of the United States in Hilton v. Guyot renders further
discussion unnecessary." Very recently in Gould v. Gould ( 235 N.Y. 14) it was said that Hilton v. Guyot did not
apply in a matrimonial action where both parties although resident in France were said to be domiciled in the
State of New York. Full force and effect was given to the French decree. The court in the end, however,
disposed of the case in the exercise of discretion. It seems illogical to leave the effect of a foreign judgment in
personam in individual cases to the discretion of the court.

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 Johnston v. Comp. Generale Transatlantique 152 N.E. 121 (N.Y. 1926)

To what extent is this court bound by Hilton v. Guyot? It is argued with some force that questions of
international relations and the comity of nations are to be determined by the Supreme Court of the United
387 States; that there *387 is no such thing as comity of nations between the State of New York and the Republic of
France and that the decision in Hilton v. Guyot is controlling as a statement of the law. But the question is one
of private rather than public international law, of private right rather than public relations and our courts will
recognize private rights acquired under foreign laws and the sufficiency of the evidence establishing such
rights. A right acquired under a foreign judgment may be established in this State without reference to the rules
of evidence laid down by the courts of the United States. Comity is not a rule of law, but it is a rule of "practice,
convenience and expediency. It is something more than mere courtesy, which implies only deference to the
opinion of others, since it has a substantial value in securing uniformity of decision, and discouraging repeated
litigation of the same question." (BROWN, J., in Mast, Foos Co. v. Stover Mfg. Co., 177 U.S. 485, 488.) It,
therefore, rests, not on the basis of reciprocity, but rather upon the persuasiveness of the foreign judgment. (
Loucks v. Standard Oil Co., 224 N.Y. 99, 111.) When the whole of the facts appear to have been inquired into
by the French courts, judicially, honestly and with full jurisdiction and with the intention to arrive at the right
conclusion, and when they have heard the facts and come to a conclusion, it should no longer be open to the
party invoking the foreign court against a resident of France to ask the American court to sit as a court of
appeal from that which gave the judgment. I reach the conclusion that this court is not bound to follow the
Hilton case and reverse its previous rulings.

The reasoning of the learned justice who wrote the prevailing opinion is, however, entitled to most respectful
consideration. Nor need we disregard the authority of the Hilton case. We may limit it to the questions actually
decided. Mr. Justice GRAY says (p. 228): "In England, and in the Colonies subject to the law of England, the
388 *388 fraud alleged in its [the French judgment] procurement would be a sufficient ground for disregarding it."
As this State has always permitted foreign judgments to be impeached for fraud, the preceding fifty-four pages
of the opinion may be regarded as magnificent dictum, entitled to the utmost respect, but not determinative of
the question.

Furthermore, the learned justice limits his discussion (pp. 170-171) to the effect which a judgment, purely
executory, rendered in favor of a citizen or resident of France in a suit there brought by him against a citizen of
the United States may be entitled to in an action thereon in the United States. Here the plaintiff was the actor in
the French court. After having sought the jurisdiction of the foreign tribunal, brought the defendant into that
court and litigated the question there, he now seeks to impeach the judgment rendered against him. The
principles of comity should give conclusiveness to such a judgment as a bar to the present action. Dicey on
Conflict of Laws (3d ed. p. 455) states separately the rule as to foreign judgments pleaded as a defense, as
follows: "A valid foreign judgment in personam if it is final and conclusive on the merits (but not otherwise) is
a good defense to an action for the same matter when either (1) the judgment was in favor of defendant or (2)
the judgment in favor of the plaintiff has been satisfied." The law of the State of New York remains unchanged
and the French judgment should be given full faith and credit.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

HISCOCK, Ch. J., CARDOZO, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.

389 Judgments reversed, etc. *389