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person may be cited to attend the inquiry, and be examined accordingly; and I can see no reason why this statute should be confined to a proceeding in which the surrogate could order property in the hands of such a person delivered to the temporary administrator. In this case the answer of the appellant does not deny that there is within his possession, under his control, or within his knowledge property which will be required to be appraised and inventoried by the executor or administrator of the decedent within this state where the decedent resided at the time of his death, and there is certainly no reason why the temporary administrator should not have the right to have an examination as to such property, not for the purpose of a final decree requiring the appellant to deliver it to the temporary administrator, but to enable the temporary administrator to make a proper appraisal or inventory, and to take the proper proceedings to ultimately secure the property for the benefit of those interested in the estate. The appellant based his motion in the court below to dismiss the proceeding upon the provision of section 2709 of the Code. By this section it is provided that, "if the person so cited interposes a written answer, duly verified, that he is the owner of said property, or entitled to the possession thereof, by virtue of a lien thereon, or special property. therein, the surrogate must dismiss the proceedings as to such property so claimed"; and the question that we are to determine is whether the appellant, by the allegations of his answer, has brought the case within the provisions of this section of the Code. The allegation of the answer is that the respondent "alleges that as to all such property in the state of Texas he is entitled to the possession thereof by virtue of a special property therein as temporary administrator of the estate of William M. Rice under the appointment duly made by a court in Texas having jurisdiction on the 28th day of September, 1900." The appellant bases his right to possession solely upon his claim as a special administrator of the decedent, of whom the petitioner is the special administrator in this state. He makes no claim to the property as against the estate, claims no ownership or right to possession in hostility to the estate, has in fact no title to the property, holding the same merely as the legal custodian pending the determination of the question as to who shall be appointed as the personal representative of the decedent. The provision of the Code now under consideration was passed to meet an objection as to the constitutionality of the provision which was sustained by the general term of the supreme court in Re Beebe's Estate, 20 Hun, 462. The provision of the statute under consideration in this case was chapter 394 of the Laws of 1870, which contained no provision for the examination of a person other than one in possession of property which it is claimed belonged to the estate. What was there decided was that a proceeding instituted under that act was invalid, as the owner of prop erty could not be deprived of his possession by such a summary proceeding. He had no right to a trial by jury. He had no right to call witnesses, but by an arbitrary and ex parte process he could be compelled to become a plaintiff if he seeks to recover the prop

and 106 New York State Reporter

erty of the administrator or executor, or to submit to all of the disadvantages of such a situation. To avoid the effect of this decision, this provision of section 2709 of the Code was passed. The section provides that a person to whom the citation is issued must be sworn to answer truly all questions put to him, and he may be examined fully and at large respecting property of the decedent, or of which the decedent had possession at the time of or within two years before his death. If the person so cited interpose a written answer, duly verified, that he is the owner of said property, or entitled to the possession thereof, by virtue of a lien thereon, or special property therein, the surrogate may dismiss the proceeding as to such property so claimed. Here the obvious intent of the statute was to protect the ownership or right of possession of a person cited, where such ownership or right of possession is antagonistic to the possession claimed by the personal representative of the decedent, so that, where a question was presented between the estate of the decedent and the individual cited as to the ownership or right of possession of the property, that question should not be tried in this proceeding. The appellant makes no such claim. The allegation of his answer upon which he relies states that he is entitled to the possession of this property as temporary administrator of the decedent, appointed by the court of Texas. He has no ownership or right of possession antagonistic to the estate of the decedent of which the petitioner is the representative in this state. He claims no ownership or special interest in the property, having characterized his right to possession by virtue of his appointment as temporary administrator of the decedent. There is no allegation in the answer that by the law of Texas a special administrator obtains any title to the property, or is anything more than he is in this state, viz. a mere custodian to preserve the property pending the determination as to whom letters testamentary or of administration should finally issue; and it would seem that his right to possession of the property is not that contemplated by this section of the Code, which requires the surrogate to dismiss the proceeding as to such property. The appellant is not entitled to the possession of the property of the decedent "by virtue of a lien thereon, or a special property therein." His mere possession as a custodian appointed by a court to preserve the property until the final determination as to who should be the personal representatives of the estate, does not either give him a lien upon or a special property in any part of the estate of the decedent; and I can see no reason why this custodian should not disclose to the representatives of the deceased in this state, where the decedent resided, all information that he has as to the location and amount of the decedent's property. None of the cases cited by the appellant present this question, as in these cases the person cited under these sections of the Code made a claim to the ownership or possession of the property as against the estate of the decedent, whose right was sought to be enforced. In re Knittel's Estate, 12 Civ. Proc. 1, does not apply, for there the right to examine a debtor of the decedent was insisted upon for the purpose

of ascertaining the nature and amount of such debtor's liability to the estate. It has been settled that a mere denial by a person cited that he has in his possession property, or information as to property, of the decedent, does not justify a revocation of the order, as that question is to be settled by the examination under oath of the person cited to appear. In re Seaman's Estate, 16 Wkly. Dig. 118. I think, therefore, that the petition was sufficient to justify the surrogate in citing the appellant to appear and submit to an examination, that the allegations of the answer were not sufficient to require the surrogate to dismiss the proceeding under section 2709 of the Code; and that the motion to vacate the order was properly denied. The order appealed from should be affirmed, with $10 costs and disbursements.

HATCH and LAUGHLIN, JJ., concur.

PATTERSON, J. (dissenting). I am not able to concur with the majority of the court in the conclusion that the order appealed from should be sustained, nor in the reasoning by which that conclusion is reached. The right to the examination provided for by section 2707 et seq. of the Code of Civil Procedure is purely a statutory

one.

When a person cited pursuant to section 2708 interposes a written answer duly verified that he is the owner of property or entitled to the possession thereof by virtue of a lien thereon or special property therein, the surrogate must dismiss the proceeding. Section 2709. The answer of Baker on the return of the citation issued to him fully complies with the requirements of section 2709. He says, respecting all the property mentioned in the petition on which the citation was issued, that he was "entitled to the possession thereof by virtue of a special property therein arising out of and existing by reason of the fact that he was duly appointed as temporary administrator of the estate of William M. Rice by the court of Texas, having jurisdiction to make such appointment, on the 28th of September, 1900, and that he duly qualified by giving a bond and taking the oath on the 29th of September, 1900, and that the appointment was duly and regularly made in all respects by a court having jurisdiction to make the same." Here was interposed by Baker a claim of title to the property in his possession. The sections of the Code applicable to this matter give no authority to the surrogate to pass upon title. If that be put in issue by a duly-verified answer of the person cited, the jurisdiction of the surrogate ends. The right of the petitioner to maintain this proceeding depends on the single fact that he, by reason of his appointment as temporary administrator in the state of New York, is entitled indisputably to the possession of that property, of course, it being shown that it belonged to the estate of the deceased. The petitioner's right to possession is disputed by Baker's answer, in which he sets up a title accrued by reason of his appointment as temporary administrator in another jurisdiction. As between two temporary administrators, one appointed in this state and the other in another state, a question as to which has the better title or supe

and 106 New York State Reporter

rior right to possession of the property now in the possession of Baker as administrator is one which the surrogate has no 'power to determine, either for the purpose of allowing the temporary administrator in New York to make an inventory or for any other purpose. In re Curry's Estate, 25 Hun, 323; In re Carey's Estate, II App. Div. 289, 42 N. Y. Supp. 346; In re Walker, 136 N. Y. 29, 32 N. E. 635. In the case last cited the court said:

"We cannot recall any statutory provision which authorizes the surrogate in any proceeding to pass upon the question of title to property as between a claimant and a representative of the testator's estate. Jurisdiction in all such cases seems to have been scrupulously and intentionally withheld."

In Doyle v. Doyle, 15 N. Y. St. Rep. 318, it was held that when an answer is interposed, denying the right of the petitioner to the property referred to in the petition, it becomes the duty of the surrogate to dismiss the proceeding, and "he has no power to investigate the verity of the denial thus made." It is true that section 2707 refers to personal property which should be delivered to a petitioner, or included in an inventory or appraisal; but it is evident from the provisions of the following sections that the inventory or appraisal mentioned in section 2707 refers to property with which the executor or administrator is to be charged in this jurisdiction. When possession is admitted, and the assertion is made under oath that that possession is by reason of ownership, or by reason of a lien or special property, the examination cannot be had, because such questions must be determined in another way; and title and the right to possession as dependent upon title cannot be tried by the surrogate under such an answer as has been interposed by Baker in this matter.

VAN BRUNT, P. J., concurs.

H. B. SCHARMANN & SONS v. DE PALO.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.) ACTIONS-VENUE-FOREIGN CORPORATIONS-JURISDICTION-PLACE OF BUSINESS. Under Laws 1897, c. 378 (Greater New York Charter, § 1370), providing that an action in a municipal court by a nonresident of the city must be brought in the district in which the defendant resides, while an action by a resident may be brought in the district in which either the plaintiff or defendant resides, and that no person having a place of business in said city shall be deemed a nonresident, and Statutory Construction Law, § 5, providing that the term "person" includes corporations, a foreign corporation having a place of business in the city may bring an action in a municipal court in the district in which such place of business is located.

Appeal from municipal court, borough of Brooklyn, First district. Action by H. B. Scharmann & Sons against Tommaso De Palo. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Argued before GOODRICH, P.. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Martin Wechsler, for appellant.

Charles L. Hoffmann, for respondent.

SEWELL, J. The complaint alleges that the plaintiff is a foreign corporation, organized under the laws of the state of New Jersey, and doing business in the city of New York, borough of Brooklyn. Before the joinder of issue, the defendant in open court demanded that the action be transferred from the First district of the borough of Brooklyn to the Second district of the borough of Manhattan. The demand was based upon the complaint and an affidavit of the defendant that he resides at No. 189 Hester street, which is within the jurisdiction of the Second district of the municipal court of the city of New York, borough of Manhattan. In answer to the defendant's affidavit, the plaintiff submitted an affidavit stating that its principal place of business is at the corner of Hamilton avenue and Conover street, which is within the First district of the borough of Brooklyn. The court denied the application to transfer the action. The motion was renewed upon the trial and denied, and judgment was rendered in favor of the plaintiff.

Section 1370 of the Greater New York charter (chapter 378, Laws 1897), so far as it has any bearing upon the point under consideration, provides that an action in a municipal court must be brought in the district in which either the plaintiff or the defendant, or one of the plaintiffs or one of the defendants, resides; and by a plaintiff not residing in the city of New York in the district in which the defendant or one of the defendants resides; and that "no person who shall have a place in said city for the regular transaction of business shall be deemed a nonresident." It also provides that, if the district in which the action is brought is not the proper district, the court must, upon the demand of the defendant, make an order transferring the action to the proper district. It is insisted by the counsel for the appellant that it cannot be said of a corporation that it is a person, and that a foreign corporation cannot be a resident of this state. It is quite true that a foreign corporation has but one domicile, namely, in the sovereignty which incorporates it. But it is equally true that a state may authorize it to transact business within its boundaries, or permit it to institute, maintain, and defend suits in any of its courts. Code Civ. Proc. §§ 1779, 1780; Gibbs v. Insurance Co., 63 N. Y. 114, 20 Am. Rep. 513. Instances are numerous where the term "person" or "persons," as used in the statutes, has been construed to include corporations. People v. Utica Ins. Co., 15 Johns. 358, 8 Am. Dec. 243; 2 Rev. St. p. 778, § 11; section 3. c. 536, Laws 1857. By section 5 of the statutory construction law it is provided that the term "person" includes a corporation and a joint stock association. It appearing that the plaintiff had a place for the regular transaction of business in the First district of Brooklyn, we are of opinion that plaintiff was entitled to bring this action in that district, and that the court did not err in refusing to transfer it upon the demand of the defendant. The other errors claimed are not of sufficient importance to require special reference to them. The judgment should be affirmed, with costs. All concur.

72 N.Y.S.-64

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