Haag v. Barnes,9 N.Y.2d 554, 216 N.Y.S.2d 65 (1961)

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Buffalo Law Review Volume 11 Number 1 Article 29 10-1-1961 Conflicts of Law—Public Policy Did Not Bar Application of Foreign Law in Contract Action Buffalo Law Review Board Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Conflict of Laws Commons Recommended Citation Buffalo Law Review Board, Conflicts of Law—Public Policy Did Not Bar Application of Foreign Law in Contract Action, 11 Buff. L. Rev. 100 (1961). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol11/iss1/29 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWof the Massachusetts legislature. The conflict between the theory of thisstatute and the public policy of New York which occurs on the question ofdamages is then considerably more fundamental than the decision of the Courtindicates. The effect of impressing the lex loci delicti with the public policyof the forum is to substantially reconstruct the Massachusetts statute from itsvery foundations.Another policy consideration is the effect, of the forum changing theapplicable law, on the parties. Declining to enforce a right created by foreignlaw, however great the resulting inconvenience, in theory does not amount toa deprivation of the right as the plaintiff may still have recourse to the foreigncourt. The converse situation, expansion of a right derived from foreign law, isquite a different matter, in view of the correlative broadening of the defend-ant's liability. The same set of operative facts should not give rise to differentdegrees and bases of liability depending solely on the forum in which liabilityis judicially determined.A possible alternative to the Kilberg dilemma would be legislation pro-viding for a cause of action in contract, similar to the plaintiff's second counthere, with the damages being unlimited. Other alternatives are federal legisla-tion or uniform state laws governing recovery for injuries resulting in deathreceived in an airplane crash. The basic problem, however, is not one forjudicial solution.The Kilberg decision upholds the state's public policy of prohibiting theimposition of limits on recovery of damages in wrongful death actions. How-ever, by disregarding the Massachusetts Act's provision as to damages andin its place applying New York's public policy, the Court is inviting forum-shopping and defeating the objective of conflict of laws rules, uniformity ofresult.40P.W.D.PUBLIC POLICY DID NOT BAR APPLICATION OF FOREIGN LAW IN CONTRACTACTIONIn Haag v. Barnes,41 an action for support against the putative father ofan illegitimate child, the defense was an agreement between the parties forsupport of the child, fully performed, and in which plaintiff relinquished theright to bring any action for support. Since the agreement was not court ap-proved as required by New York law,42 it would not bar the suit under theinternal law of New York. The agreement was made in Illinois, however, whereboth parties resided at the time, and it specifically provided that it should be40. Goodrich, supra note 1, § 4.41. 9 N.Y.2d 554, 216 N.Y.S.2d 65 (1961).42. N.Y. Dom. Rel. Law § 121 and New York City Criminal Courts Act § 63 provide:An agreement or compromise made by the mother .. .shall be binding only whenthe court shall have determined that adequate provision has been made.COURT OF APPEALS, 1960 TERMinterpreted, construed and governed by the laws of that state. Under Illinoislaw, the agreement amounted to an absolute bar to suit.4 3The traditional rule is that the law governing a contract must be deter-mined by the intent of the parties. 44 The intent of the parties is no longerconclusive, however, and the courts will look to the law of the place havingthe most significant contacts with the matter in dispute.4 5 Under both tests theCourt of Appeals held that Illinois law was applicable.In considering plaintiff's argument that public policy required the appli-cation of New York law, the Court stated that the issue is not whether theNew York statute reflects a different public policy from that of the Illinois law,but whether enforcement of the contract under Illinois law represents an affrontto our public policy.46 Moreover, it found that the agreement did in factsatisfy the public policy of New York.Bd.FOREIGN DIVORCE ACTION NOT ENJOINED IF DECREE NOT ENTITLED TO FULLFAITH AND CREDITIn Arpels v. Arpels4 7 plaintiff sought to enjoin her husband from prose-cuting a divorce action, based on alleged adultery, instituted by him in France.Special Term granted a temporary injunction,48 but the Appellate Divisionreversed and dismissed the complaint.49 The Court of Appeals affirmed. TheCourt noted that the power to enjoin a person from resorting to a foreign courtis a power used sparingly inasmuch as it represents a challenge to the dignityand authority of the tribunal. Thus, it is employed only if there is a dangerof fraud or gross wrong being perpetrated on the foreign court. The power isfurther restricted in the case of a foreign divorce action where, even if aserious impropriety would result from prosecution of the action, an injunctionwill issue only if the ensuing decree would be entitled to full faith and credit.50The Court found that there was no danger of fraud on the foreign courtsince there was good reason to believe that the French court had jurisdictionto hear the suit and render a binding judgment under French law. Even ifthere was a possibility of fraud, however, plaintiff still would be unsuccessful.It is well-established that a divorce decree, valid under the laws of one of thestates of the union, must be accorded full faith and credit by a sister state.5143. Ill. Rev. Stat. ch. 106Y4, § 65.44. Wilson v. Lewiston Mill Co., 150 N.Y. 314, 44 N.E. 959 (1896) ; Stumpf v. Haila-han, 101 App. Div. 383, 91 N.Y. Supp. 1062 (1905), aff'd, 185 N.Y. 550, 77 N.E. 1196(1906).45. Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954); Rubin v. Irving Trust Co.,305 N.Y. 288, 113 N.E.2d 424 (1953).46. Cf. Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 120 N.E. 198 (1918).47. 8 N.Y.2d 338, 207 N.Y.S.2d 663 (1960).48. 17 Misc. 2d 471, 187 N.Y.S.2d 100 (Sup. Ct. 1959).49. 9 A.D.2d 336, 193 N.Y.S.2d 754 (1st Dep't 1959).50. See, Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E.2d 902 (1955); Garvin v.Garvin, 302 N.Y. 96, 96 N.E.2d 721 (1951).51. Williams v. State of North Carolina, 317 U.S. 287 (1942); Garvin v. Garvin,supra note 50.

Conflicts of Law—Public Policy Did Not Bar Application of Foreign Law in Contract Action

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Conflicts of Law—Public Policy Did Not Bar Application of Foreign Law in Contract Action

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