191 A.D. 59 | N.Y. App. Div. | 1920
Lead Opinion
Section 1836-a of the Code of Civil Procedure provides: “An executor or administrator duly appointed in any other State, Territory or district of the United States or in any foreign country may sue or be sued in any court in this State in his capacity of executor or administrator in like manner and under like restrictions as a nonresident may sue or be sued,” if there shall be filed within the times and in the manner therein provided a duly authenticated copy of his letters.
I cannot accept the conclusion of Mr. Justice Latjghlin that this section in so far as it relates to actions against foreign executors is to be limited to the same classes of actions that are authorized by section 1780 of the Code of Civil Procedure to be brought against foreign corporations. If such had been the intention of the Legislature, it would have provided in section 1836-a “ in like manner and under like restrictions as a foreign corporation may sue or be sued.” We are not to presume that the members of the Legislature are ignorant of the law and did not know the difference between the manner and restrictions of bringing an action against a non-resident of the State and against a foreign corporation. A non-resident may be sued upon any cause of action, the subject-matter of which is within tfie jurisdiction of the court, if the summons is personally served upon him within the State, and may be served by substituted service where property situated within the State is the subject of the action (Code Civ. Proc. § 438, subd. 5) or property is attached therein; in which case the judgment is conclusive only as to such property. On the other hand, a foreign corporation can maintain any action in the courts of this State of which the court has jurisdiction, except that it
Before the enactment of section 1836-a of the Code of Civil Procedure it was the rule in this State, in harmony with that which generally obtained, that an action at law could not be maintained against a foreign executor or administrator, but suits in equity were often sustained. (De Coppet v. Cone, 199 N. Y. 56, 60; McNamara v. Dwyer, 7 Paige, 239; Doolittle v. Lewis, 7 Johns. Ch. 45.)
The decision of the case of Thorburn v. Gates (184 App. Div. 443, affg. 103 Misc. Rep. 292) did not rest upon the fact that the action was in equity to reach real and personal property of the decedent in this State, and, therefore, this court decided that jurisdiction was conferred by section 1836-a. There is no discussion of this proposition either in the opinion of Mr. Justice Bijtjr at Special Term or in the opinion of this court. The reason for this omission is obvious. The courts of this State had sustained such actions in equity against foreign representatives prior to the enactment of section 1836-a. The learned judge of the United States District Court in Thorburn v. Gates (225 Fed. Rep. 613; 230 id. 922) had limited the effect of section 1836-a to cases not only where assets of the decedent were in this State, but further where the law of the State of decedent’s domicile authorized such suits to be brought against representatives appointed therein, thus holding that a statute of this State which conferred jurisdiction upon our courts depended for its validity upon statutes of foreign States. It is_ well settled that statutes of foreign States have no binding force or effect beyond the territorial limits of that State, and yet it was held that such statutes limited our Legislature in its power to confer jurisdiction upon our courts. We referred to this decision of the United States District Court and expressly repudiated it. (184 App. Div. 445.) We, therefore, considered the effect of section 1836-a generally and not with reference to the particular cause of action alleged. A similar contention is made, on this appeal, by the appellant that inasmuch as the laws of the State of New Jersey do not permit actions to be brought in that State against foreign representatives, no other
In the present case we are not advised of the cause of action. The action was commenced by the personal service upon the defendant within this State of a summons, with a notice that in default of appearance oi answer judgment would be taken for $25,000. The action is, therefore, an action at law. The defendant appearing specially upon affidavits alleging that she was and is a resident of Washington, District of Columbia,
The order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Dowling and Merrell, JJ., concur; Laughlin, J., dissents.
Dissenting Opinion
A copy of the summons was delivered to the defendant in the county and State of New York on the 17th of July, 1919. The title of the action shows that it was brought against the party served not individually but as executrix of the last will and testament of Frederick L. Buckelew and there was indorsed on the summons a notice to the effect that upon default in
The point attempted to be presented by the motion is that the court has no jurisdiction over the defendant who is sued only in a representative capacity as executrix of a decedent who was a resident of Middlesex county, N. J., where he died on the 12th of June, 1917, leaving a last will and testament naming the defendant Mary E. Buckelew his sole executrix and naming her individually his sole legatee and devisee. The will was duly admitted to probate in said county and letters testamentary were there issued to the executrix and she is not and never has been a resident of the State of New York but resided at Washington, D. C., when the service was so made on her. The decedent left no assets in this State and in the probate proceedings in New Jersey the necessary action was taken as required by the laws of that State requiring that all claims against the estate be presented to the executrix and that the time for presenting such claims expired before the delivery of the summons to her and no claim was presented by the plaintiff. The affidavit of the member of the bar of New Jersey shows that there is no statute of New Jersey subjecting an executor or administrator appointed by the courts of that State to a suit in a jurisdiction other than that of the State of New Jersey and that the decisions of the courts of that State recognize and affirm the rule that executors are not subject to compulsory process outside the State of their appointment unless they are qualified and appointed under ancillary proceedings in the jurisdictions in which they are sued; and he cites Babbitt v. Fidelity Trust Co. (70 N. J. Eq. 651) and states that it has not
Counsel for the respondent also relies on the exercise of jurisdiction by courts of equity over trustees for the preservation of assets although the authorities and duties of trustees may have arisen in another jurisdiction where the assets are distributable (See Reading v. Haggin, 58 Hun, 450; Paget v. Stevens, 143 N. Y. 172. See, also, Hallenborg v. Greene, 66 App. Div. 590, not cited), but manifestly the theory upon which the jurisdiction is exercised in that class of cases has no application to the case at bar, which is an action at law to recover a judgment for money only, and solely for the benefit of the plaintiff.
I am, therefore, of opinion that said section 1836-a of the Code does not authorize the maintenance of this action and
Order affirmed, with ten dollars costs and disbursements.