Ziemer v. Crucible Steel Co.
90 N.Y.S. 962
N.Y. App. Div.
1904
Check Treatment
O’Brien, J.:

The action is brought by the plaintiff as administratrix of her husband’s estate to recover for his death which she alleges was caused by defendant’s negligence.

The deceased was employed in the defendant’s factory at Newark, N. J., аnd at the time of the accident resulting in his death was engaged with others in cutting a piece of red hot steel by meаns of a cutter and a powerful steam hammer. The theory upon which recovery is sought is that the hammer rebounded owing to the presence of water in the cylinder, thus causing a piece of steel, called a “ knocker-off,” held above the cutter by means of a rod in the hands of a workman, to fly off and strike plaintiff’s intestate, and that if the defendant had reasonably supplied a separator to remove water from the steam and thus prevent its accumulation in the cylinder, the accident would not have occurred.

Without discussing the questions of whether the еvidence supports the finding that the defendant was negligent in not providing a separator and whether the acсident could be traced to ‍​​‌‌​​​​‌‌​​​‌‌​‌‌​‌‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌​​​​​‌​‍such neglect, we think that this judgment must be reversed and the complaint dismissed upon the ground that the courts of this State have no jurisdiction to entertain the action.

The deceased was a resident of New Jersey, where the accident occurred, and the defendant is a New Jersey corporation. The *171plaintiff continued to live in New Jersey for six months after her husband’s death. Although the plaintiff applied for letters of administratiоn after moving into this State, she sues upon the New Jersey statute* permitting such an action to be brought, and her letters оf administration were granted upon the ground that the deceased left property in this State. This action, therefore, is founded upon the plaintiff’s appointment as administratrix by the surrogate of New York county, and the letters of аdministration recite that the deceased was a non-resident and died ‍​​‌‌​​​​‌‌​​​‌‌​‌‌​‌‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌​​​​​‌​‍leaving property in this State. The answer dеnied that the plaintiff was duly appointed administratrix as alleged in the complaint, thus raising the issue of jurisdiction (Code Civ. Proc. § 532), involving as it did the right of the surrogate to issue the letters. Upon the trial the plaintiff testified that her husband left no proрerty whatever in this State.

In the recent case of Hoes v. N. Y., N. H. & H. R. R. Co. (173 N. Y. 435) it was held that a surrogate’s decree granting letters of administration upon the estate оf a non-resident may in a negligence action brought by the administrator be attacked collaterally on the ground of collusion and legal fraud in obtaining the letters, and where such collusion and fraud appear, the courts аre without jurisdiction to entertain the action to recover for negligence. It was proper, therefore, in the present action for the defendant to deny the due appointment of the plaintiff, and we think it clearly аppears that the letters of administration were not properly granted to the plaintiff, and hence that the courts of this State are without jurisdiction. The letters were issued on the ground that the deceased left property in this State. The letters so recite, and yet the plaintiff’s own testimony is that upon his death the deceased had no property whatever here.

In the Hoes Case (supra) the Court of Appeals held that the bringing of a watch and chain of trifling value into the Stаte for the purpose of laying a foundation for making an application for letters so that the action might be prosecuted, constituted- collusion and legal fraud and jurisdiction was not thereby conferred upon the Supreme Court of this State to try a negligence action having its *172origin in another State. In the present case therе was not even an attempt made to justify the issuance of the letters, but it was admitted by the plaintiff’s testimony that the deceased did not, as stated in the letters, have property ‍​​‌‌​​​​‌‌​​​‌‌​‌‌​‌‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌​​​​​‌​‍in this State. It follows that there was no basis for the issuancе of the letters. The plaintiff insists that there was no legal fraud for the reason that, although the petition is in the regular form and states that the “ deceased died possessed of certain personal property in the county and State of Hew York,” it is therein further added that it was no value. But unless there was property .no letters could issue.

Though not a case like that of Collard v. Beach (81 App. Div. 582), which was an action to recover for negligence where both parties were non-residents and the accident occurred in another State, what was therein said is applicable, that “ The habit of importing such litigations as this intо this jurisdiction, consuming the time of the courts and requiring the People of the State of Hew York to bear the burden and еxpense of trying actions which ought to have been brought in other jurisdictions, where the home courts of litigants are оpen to afford adequate remedies, has become a great abuse and a just subject of complaint and protest. If it is to be encouraged, as was said in Hoes v. N. Y., N. H. & H. R. R. Co. (173 N. Y. 441), the flood gates of litigation in similar eases will be wide open, if ‍​​‌‌​​​​‌‌​​​‌‌​‌‌​‌‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌​​​​​‌​‍not to establish a new legal industry, at all events to impose upon ‘ our already overworked courts the obligation to try actions imported from a foreign jurisdiction ’ * *

We think that in the case at bar, as was said in that case, “ there is not a fact or circumstance suggested in the whole record * * * why the courts of this State should be vexed with this particular litigation.” Apart from this, however, for the reasons stated, we think that jurisdiction herein was never acquired, it appearing that the letters of administration were granted by thе surrogate without authority.

Our conclusion, therefore, is that the judgment and order should be ‍​​‌‌​​​​‌‌​​​‌‌​‌‌​‌‌​‌​‌​​​‌​​‌​‌​​​​‌‌‌​​​​​‌​‍reversed, with costs, and the complaint dismissed, with costs.

Van Brunt, P. J., Hatch and Laughlin, JJ.., concurred; Patterson, J., dissented.

Judgment and order reversed, with costs, and complaint dismissed, with costs.

Notes

Gen. Stat. of N. J. 1188, § 10 el seq., as amd. by Laws of N. J. of 1897, chap. 58.—[Rep.