129 N.Y.S. 577 | N.Y. App. Div. | 1911
The plaintiff commenced this action to recover for the conversion by .George P. Sheldon, defendant’s intestate, of 100 shares of the capital stock of the Phoenix Insurance Company,
The summons was dated on the 18th of December, 1909, and on the same day plaintiff obtained from a justice of the Supreme Court a warrant of attachment, defendant being a non-resident. The affidavit upon which the attachment was obtained complied with the Code of Civil Procedure, and there was no question made but that the attachment was regularly granted. On the same day the sheriff of New York county, under this warrant of attachment, levied upon certain property belonging to the defendant. On the 25th of December, 1909, the defendant died at Greenwich, in the State of Connecticut, where he resided, and on the 14th of January, 1910, the defendant the Greenwich Trust Company of Greenwich, Conn., was appointed administrator of the property of the deceased, and duly qualified as such administrator. The Greenwich Trust Company was a corporation organized under the laws of the State of Connecticut. The defendant had not appeared.or been served prior to his death, nor had service of the summons by publication been commenced. On the 15th of January, 1910, plaintiff, upon an affidavit setting forth these facts, obtained an order of the Special Term of the Supreme Court continuing the action against the Greenwich Trust Company of Greenwich, Conn., as administrator of the goods, chattels and credits of George P. Sheldon, deceased, and substituting said corporation as administrator as the defendant in the place of George P. Sheldon, and amending the complaint accordingly. An amended complaint was then filed, in which the ■ defendant was the trust company as administrator of Sheldon. On the same day, January 15, 1910, upon ah affidavit stating that this action was commenced against Sheldon by the issuing of a summons and the granting of a warrant of attachment upon which the sheriff had made a levy upon the property of Sheldon and taken such property into his possession; that upon the twenty-fifth of December, subsequent to the levy of the attachment, Sheldon died; that on the 14th of January, 1910, the Greenwich Trust Company of Greenwich, Conn., was appointed administrator of the goods, chattels and credits of Sheldon; that said Greenwich Trust Company of Greenwich,
It is not disputed by the respondent but that the warrant ,of attachment was valid when granted, and that the levy under it .was a valid levy. Section 638. of the Code of Civil Procedure provides that “The warrant niay be granted * * * to
The question is then presented as to who was the defend
The situation as it existed at the time of the death of the defendant was before the Supreme Court of the United States in the case of Pennoyer v. Neff (95 U. S. 714). In discussing' the power of a State to proceed in an action brought to recover a judgment against a non-resident where the court has attempted to obtain jurisdiction by the service of process by publication, the court said: “So the State, through its "tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own. citizens
If the principle- established in these cases is sound we' have here an action in form in personam, but in reality a proceeding in rem, whereby certain specific property levied on under a warrant of attachment was proceeded against to satisfy the claim of the plaintiff against the original defendant who was •the owner of the property. The death of the original defendant prevented the continuation of the action or proceeding as against him. His ownership of the property attached, or that was subject to the lien of the warrant of attachment, had vested in his personal representatives appointed in the jurisdiction where he had resided. The courts of that jurisdiction having appointed an administrator of the deceased defendant’s estate the title of that administrator to the decedent’s property is recognized in this State. Such administrator became the defendant’s, representative or successor in interest, and there being no administration in this State, the administrator being entitled to the possession of the property subject to the lien of the attachment, was the only party who could be substituted for the original defendant as the only party in existence who had a title to the property which had been subjected by virtue of the levy under the original attachment to a lien in favor of the plaintiff. And it seems to follow by necessary deduction that the court had power to substitute the successor in interest of the original defendant as the defendant in this action against whom this action should continue to determine whether or not the property which was subject to the lien obtained by the levy of the warrant of attachment should be applied to the payment of the plaintiff’s claim. The court having, therefore, quite properly, I think, substituted this successor in interest of the defendant to the property proceeded against, then within thirty days after the granting of the warrant of attachment ordered that the summons should be served upon the substituted defendant by publication. If I am right in the conclusion that the court had power to substitute this administrator of the deceased
Strange as it may seem, this question has not been directly presented in any controlling, authority in this State to which. our attention has been called. ■ In Blossom v. Estes (84 N. Y. 614) an attachment had been granted under the old Code of . Procedure upon the ground that the defendant was a noh-resi- .
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
McLaughlin, Clarke, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.