184 A.D. 443 | N.Y. App. Div. | 1918
The sole question presented for determination on this appeal is whether the Supreme Court can obtain jurisdiction of a foreign executor as such by personal service of process upon the executor within this State.
The appellants’ counsel has discussed a number of propositions that cannot properly be raised upon this appeal. Whether the complaint states facts sufficient to constitute a cause of action must be presented by demurrer or motion on the pleadings and cannot be considered on a motion to set aside the service of a summons. Neither are we concerned, at this stage of the proceedings, with the manner in which a judgment that might be recovered could be enforced in this State nor whether it would be recognized and given effect in the State of Texas.
The appellants contend that it has been determined in two other actions between the same parties that the Supreme Court could not obtain jurisdiction of the defendants by the service of a summons on her personally within the State and that, therefore, the question is res adjudicata. (Thorburn v. Gates, 225. Fed. Rep. 613; S. C., 230 id. 922.) The two cases cited were brought in the United States District Court for the Southern District of New York, and the question under consideration was, did that court acquire jurisdiction of the executor appointed by the courts of Texas by service of its process within the Southern District of New York?
Whether a State will give extraterritorial effect to letters testamentary or of administration, granted by the courts of a foreign State is, as stated by Mr. Justice Story, “ a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own, institutions and the interests of its own citizens.” (Vaughan v. Northup, 15 Pet. 1, 5.) Judge Hand in his opinion (225 Fed. Rep. 613, 617) says: “ It may be suggested that a federal court does assume jurisdiction over the determination of suits against executors, though it will leave to
The order should be affirmed, with ten dollars costs and disbursements.
Dowling, Laughlin, Smith and Merrell, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.