142 N.Y.S. 561 | N.Y. App. Div. | 1913
The complaint alleges that on or about the 30th day of July, 1908, one Daniel F. Keenan, now deceased, formerly of Philadelphia, State of Pennsylvania, the owner of chattels therein described, made, executed and delivered to the plaintiff, John J. Callanan, an instrument in writing of which a copy is thereto annexed, marked Exhibit “A” (and which is a chattel mortgage upon the stone-crushing plant located at Whitehall, Washington county); that said mortgage was duly filed in the town clerk’s office of the town of Whitehall on the 1st day of August, 1908, where said chattels were situated at the time of such execution; that the said Daniel F. Keenan and the said Emily M. Keenan, as executrix of the estate of said Daniel F. Keenan, deceased, have failed to comply with the conditions of the said mortgage, etc., although the same has been duly demanded; that thereafter and before this action was commenced the said
The defendant has demurred to this complaint upon the grounds (1) that the court has not jurisdiction of the person of the defendant; (2) that the court has not jurisdiction of the subject of the action; (3) that the complaint does not state facts sufficient to constitute a cause of action; (4) that there is a defect of parties defendant in that the heirs at law, next of kin and personal representatives of Daniel F. Keenan, deceased, are not made parties defendant herein. The demurrer has been overruled and the defendant appeals to this court, urging that the court has no jurisdiction of the defendant or of this action, as the defendant is a foreign executrix appointed by and acting under the laws of the State of Pennsylvania, and the defendant as such executrix has not waived her objection to the jurisdiction by appearing specially and demurring on the ground of lack of jurisdiction. There is no doubt that it is the general rule that an action will not lie against a foreign executor in his representative capacity, but there are exceptions to the rule. In actions in equity where it is necessary to prevent a failure of justice jurisdiction will be assumed at least so far as the relief to be secured relates to property in the jurisdiction of the court. (Bergmann v. Lord, 194 N. Y. 70, 77, and authorities there cited.) Here the contract was made, executed and delivered in the State of New York, and the mortgage covered personal property constituting a stone-crushing plant located in the town of Whitehall, where, we may assume, the property is still located. There can be no question, therefore, that the court has jurisdiction of the subject-matter of the action, and
The interlocutory judgment appealed from should be affirmed, with costs.
All concurred.
Interlocutory judgment affirmed, with costs, with usual leave to defendant to withdraw demurrer and answer on payment of costs in this court and at Special Term.