70 N.Y.S. 139 | N.Y. App. Div. | 1901
Lead Opinion
An order was made in this action upon affidavits and a verified complaint directing the service of the summons upon certain non
This order was thereafter vacated upon motion of the defendants thus served, upon the ground, as appears from the opinion of the learned justice sitting' at Special Term, that the complaint did not state facts sufficient to constitute a cause of action, and the plaintiff has appealed.
. The complaint alleges in substance that, in 1891, one James McHenry, then a resident of London, England, died, leaving a last will and testament, which was then admitted to probate and letters testamentary issued to the defendants E. R. McDermott and Boyd, both non-residentsthat no letters of administration have been issued on the estate of McHenry in the State of New York ; that the plaintiff is the assignee of certain claims against McHenry.; that, in 1871, McHenry and one " Kennard owned both real and personal property in several States of the Hnited States, principally in the States of New York, New Jersey, Pennsylvania and Ohio, and for the purpose of uniting their respective interests in such property “ they devised a plan for creating a trust thereof, and by that means turned the property into a trust fund, having the legal quality of personalty as between themselves and the trustees of the fund; ” and in the month of October, of that year, they conveyed all of their real and personal property to certain trustees named in an indenture bearing date the 2d day of October, 1871, by the provisions of which the beneficial interest in such property was to be represented by 400 certificates of $5,000 each, to be issued by the trustees, which certificates, by the terms of the deed creating the trust, were expressly declared to be personal property, and of which said McHenry was entitled to and did receive 150 certificates ; that in 1874, McHenry, being then insolvent, transferred 100 of these certificates to one Moran, who, in January, 1878, transferred. them to one Woodman and the same stood registered in his name when he died in 1895, and- his administratrix thereafter assigned the certificates and the property represented by them to William R. Dunning; that the assignment to Moran was made under a post-nuptial settlement on McHenry’s wife, with a power of appointment to her in case of her death without children; that Woodman and Moran
• We are of the opinion that the order appealed from is right. The non-residence of a defendant is not, in and of itself, sufficient to justify an order directing service of a summons upon him by publication, or personally without the State. In addition to the non-residence, it must appear from the complaint filed that the plaintiff has a sufficient cause of action against him, or that there is specific property within the State belonging to him or in which he has an interest, from which the judgment in the action, when recovered, may be satisfied. Section 439 of the Code of Civil Procedure expressly provides that “ the order must be founded upon a verified complaint showing a sufficient cause of actiozi against the defendant
Here, we are of the opinion that a “ sufficient cause of action ” is not alleged in the complaint. (Perkins v. Montgomery, N. Y. L. J. June 8, 1897; Montgomery v. McDermott, 99 Fed. Rep. 502; 103 id. 801; Adee v. Bigler, 81 N. Y. 349; Adsit v. Butler, 87 id. 585; Carpenter v. Osborn, 102 id. 552, and other authorities hereafter cited.)
The action, as already said, is brought by the assignee of creditors of McHenry, now deceased. McHenry was a non-resident at the time of his death; his executors are non-residents and acting under letters issued by a foreign country; no administration proceedings have been taken in this State; the plaintiff has never obtained a judgment at law, either against McHenry or against his estate, and
whole theory of administration rests upon the idea that when a man dies his estate shall answer to his creditors equally, and without preference, and the surrogate is purposely made master of the situation to prevent inequality of payment. This plaintiff could undoubtedly have maintained an action for the benefit of all the creditors, after refusal of the representatives to set this conveyance aside, but instead of that she is seeking, by an ordinary credit- or’s action, to secure payment of her own debt, regardless of what may happen to others.”
• It must, therefore, be hold that inasmuch as the plaintiff has never established the validity of his claim in an action of law, and does not hold, or has not acquired a lien by attachment or otherwise, upon the property sought to be reached, that the court has no jurisdiction to grant the relief asked, or to render a judgment which can be enforced against the estate ot McHenry, he having died prior to the commencement of the action. And, as was said by Judge Dan-forte in Bryan v. University Publishing Co. (supra), “ The court can give no relief, and the impropriety of issuing an order which, if it leads to a judgment, ‘ would operate on nothing in the state and be regarded by nobody out of it,’ becomes apparent. It offends every principle by which the jurisdiction of a court can be vindicated, and should not be allowed to stand. * * * In the complaint before us, no case is made giving jurisdiction to the courts of this state over the subject of the action or its cause, and the defendant is
The order must, therefore, be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., and O’Brien, J., concurred; Ingraham, J., dissented.
Dissenting Opinion
■ I think that a cause of action was alleged, and that the court had jurisdiction. I dissent.
Order affirmed, with ten dollars costs and disbursements.
