43 N.Y.S. 143 | N.Y. App. Div. | 1897
This action was brought to recover the consideration paid' for a judgment transferred by defendant to plaintiff, to which judgment defendant had no title. The answer was, in substance,, a general denial. A judgment was recovered in the action against the defendant. Before the time to appeal had expired the defendant died, and the executrix was appointed in the State of Massachusetts.
No ancillary letters were granted in this State. The foreign executrix thereupon made the motion resulting in the order appealed from. We think that the order was erroneously granted.
' The general rule is well settled that a foreign executor cannot sue or be sued purely in his representative capacity in the courts of this State. (Matter of Webb, 11 Hun, 124; Vermilya v. Beatty, 6 Barb. 429; Field v. Gibson, 20 Hun, 274; Hopper v. Hopper, 125 N. Y. 400; Johnson v. Wallis, 112 id. 230; Dolittle v. Lewis, 7 Johns. Ch. 45; Petersen v. The Bank, 32 N. Y. 21; Lawrence v. Lawrence, 3 Barb. Ch. 74.)
It will not do to say that a foreign executor may sue or defend in this State if he voluntarily submits himself to the jurisdiction of our courts, because the rule is that he may no more sue than be sued in our courts. He would certainly submit himself to such jurisdiction if he were to a suit here, but this he cannot do by reason of this well-settled rule.
In Hopper v. Hopper (125 N. Y. 400, 402, 403) it was said, “ By the phrase ‘ foreign executor,’ the courts never mean the mere non-residence of the individual holding the office, but -the foreign origin
And in the latter case it was said: “ They (the defendants) rely mainly upon-the proposition that, as. foreign executors, they could not sue or be sued in this State, and acquire all their rights from, and owe their responsibilities to, another jurisdiction. That is the general rule, hut in this State, at least, is confined to claims and liabilities resting wholly upon the representative character. In Lawrence v. Lawrence (3 Barb. Ch. 74) the rule was declared to be applicable only to suits brought upon debts due to the testator in his lifetime, or based upon some transaction with him, and does not prevent a foreign executor from suing in our courts upon a contract made with Mm as such executor. Of course where he can sue upon such a contract he may he sued upon it. The remedy must run to each party or neither.”
In Lawrence v. Lawrence (supra) the action was brought by the foreign executor to foreclose a mortgage given to a co-executor after the death of his testator, and it was said, “ As a general rule, a foreign executor is not entitled to sue in our courts. * * * These rules, however, are only applicable to suits brought by executors for debts due to the testator, or where the foundation of the suit is based upon some transaction with the testator in his lifetime. And they do not prevent a foreign executor from suing in our courts upon a contract made with him as such executor.”
In this case the executrix asked to be made a party in her purely representative capacity, the subject-matter of the suit being a transaction had with the testator in his lifetime. Under the rule we have stated, she cannot be. a party either plaintiff or defendant in the action.
The appellant seeks to answer ,this by the suggestion that property of the estate might be brought here so as to confer jurisdiction upon our courts to grant letters ancillary, if the executrix is inclined to bring such property here. Without passing upon the question which might arise in- ease this were done, it is sufficient to say that there is nothing in the present record to vary the long settled and established rule to which reference has been made, and that rule cannot be disregarded for the purposes of" any particular case.
The order was clearly unauthorized and must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J., Barrett, Rumsey. and Patterson, JJ., ' concurred.
Order reversed, with ten dollars costs and disbursements, and ' motion denied, with ten dollars costs.