Watkins v. Madison County Trust & Deposit Co.
24 F.2d 370
2d Cir.
1928
Check Treatment
L. HAND, Circuit Judge

(after stating the facts as above). [1-3] When the defendant took over from Hervey E. Eaton’s executrix the bonds and bank account xhich made up the only assets it got, it did so as administrator, and necessarily under claim of title. Immediately thereafter it began to collect the income and to dispose of it, and of part of the principal, in accordance with the will and codicil, and this it continued to do for over nine years before the writ issued. This being an action for conversion, the period of limitation is six years under section 48 of the New York Civil Practice Act, which controls as well here as in an action in a New York court. The statute began to run at once, because the possession was wrongful from the outset, and no subsequent demand and refusal could start it afresh. Mills v. Mills, 115 N. Y. 80, 21 N. E. 714; Wood v. Young, 141 N. Y. 211, 36 N. E. 193; Keys v. Leopold, 241 N. Y. 189, 149 N. E. 828. Thus the action is barred.

The plaintiff answers that until September, 28, 1925, when the defendant’s final account was approved, and it was ordered to distribute the remaining assets, he could not have brought this action without invading the possession of the Surrogate’s Court of Madison County. Byers v. McAuley, 149 U. S. 608, 13 S. Ct. 906, 37 L. Ed. 867; Farrell v. O’Brien, 199 U. S. 89, 25 S. Ct. 727, 50 L. Ed. 101; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 45, 30 S. Ct. 10, 54 L. Ed. 80. We decided in Watkins v. Eaton, 183 F. 384, that the plaintiff could not sue to compel Eaton to deliver the assets to him as the true owner, and the plaintiff attempts to use that decision as authority for the notion that the present suit would not lie until the defendant, Eaton’s successor, had ceased to hold as an officer of the surrogate. But the action, being for conversion in seizing the plaintiff’s property without warrant of law, depends upon the defendant’s wrongful act. As such it lay as well when the defendant took over the assets as it ever could, for it is not possessory, and judgment Would not result in any disturbance of the assets. True, satisfaction would pass whatéver title the plaintiff had; but that is irrelevant. The wrong, like any other tort, created a liability, and the liability could be put into a judgment; but the judgment would only be a debt, chargeable against the defendant’s individual assets at any rate. Nobody has ever questioned the power of a court of general jurisdiction to entertain an action of trover against an executor individually for a conversion by himself. Goulding v. Horbury, 85 Me. 227, 27 A. 127, 35 Am. St. Rep. 357; Rough v. Womer, 76 Mich. 375, 43 N. W. 573; Yeldell v. Shinholster, 15 Ga. 189; Fredenburg v. Horn, 108 Or. 672, 218 P. 939, 30 A. L. R. 1153. All that has ever been doubted is as to whether action also lies against him in his representative capacity. De Valengin v. Duffy, 14. Pet. 282, 290, 291, *37210 L. Ed. 457; Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950.

Watkins v. Eaton (C. C. A.) 183 F. 384, is therefore not controlling here. Indeed, it does not appear that, had we thought in that case that the surrogate had had no jurisdiction, we should still have held that the rule in Byers v. McAuley and similar cases applied. It is entirely consistent with our decision that we thought the surrogate had in fact jurisdiction over the assets, and refused to interfere because of that fact. How far we should have felt at liberty to examine the basis of his jurisdiction, and disturb his custody, if he had none, we did not then, and do not now, decide. The defendant is now sued as a bare tort-feasor, and as such he was open to suit as soon as his wrongful possession arose.

On the merits we do not find it necessary to pass, because the statute is conclusive. So far as the plaintiff's capacity to sue is concerned, a question is indeed presented whether, had the conversion been proved and the plaintiff's title, he might sue individually even in New York. Moore v. Petty (C. C. A.) 135 F. 668, 673 (C. C. A. 8). However that may be, it is certainly hard to see how the surrogate was without jurisdiction over the bonds and deposit in the form in which they were when he issued letters to the defendant. It is immaterial how they were acquired. In re Hughes, 95 N. Y. 55. But on that we express no opinion.

We cannot close, however, without no-* tieing the contents of the so-called bill of exceptions. Most of it is made up of colloquy between counsel and the court; it contains some 80 pages of argument, printed in extenso, to which we are referred as supplementary to the briefs. Such practice is altogether unwarranted, impedes any proper consideration of the cause, and should not have been permitted by the judge who settled the bill.

Judgment affirmed.