90 N.Y.S. 420 | N.Y. App. Div. | 1904
The court was without jurisdiction to grant the order appealed from. The action is at law and was brought against Herrmann Weiller to recover a money judgment bn contract. Pending the trial the defendant died at his place of residence in Philadelphia, Pa., and thereafter, on the probate of his will, letters testamentary were issued in Pennsylvania to his executor, the appellant, who is a resident of that State. The order appealed from revives and continues the action against the executor. It does not appear that the executor was at any time within the jurisdiction of the court, but the proceedings to revive the action were instituted by an order to show cause which provided for service by registered letter directed to him at his office in Philadelphia. There is no claim made that the executor has brought any portion of the assets of the estate into this State, or that ancillary letters have been issued in this State.
Matter of Webb (11 Hun, 124) is an authority in the appellant’s favor on the precise point presented. In that case the defendant died after issue and a reference, and an order was granted reviving the action against his executors, who were appointed in the State of Hew Jersey. The court, reversing the order, held that an executor or administrator, appointed in and acting under the authority of a foreign court of probate, by virtue of his office merely, cannot prosecute or defend an action in this State, nor can he be substituted in the place of the deceased in an action therein, pending against him at the time of his death. The court said (p. 125): “ The claim in suit is strictly one against the personal representatives of the testator, and in no way connected with any trust created by his will. If the action had been to enforce, maintain or vindicate a trust, the foreign domicile or appointment of the trus
The disability of the common law has not been removed by any
The order should be reversed and the motion denied.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.
2d ed.
Pugh’s BP or v. Jones, 6 Leigti, 299, 310.
13 Abb. Pr.