McCarthy v. Supreme Court of the Independent Order of Foresters

107 A.D. 185, 94 N.Y.S. 876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1905
• Status: Published

Opinion

Williams, J. :

The judgment should be reversed on questions of law and a new trial ordered, with costs to the appellant to abide event.

The action was brought to recover the amount of a beneficiary certificate for $1,000. issued by defendant upon the life of Edward Sandell. The insured was, up to the time, of his death, a resident of Ontario, Canada. He died July 23, 1903, in Canada, intestate, leaving no wife, but two infant children. The defendant is a foreign corporation, organized under the laws of Ontario, but duly admitted to-do business in the State of Hew York. The plaintiff procured herself to be appointed administratrix of the estate of the insured in the county of Erie and brought this action in that county. Ho question is made but that the defendant is liable to the estate of the insured for the amount of the certificate. The defense is.that the surrogate of Erie county had no jurisdiction to appoint the plaintiff administratrix of the estate, and that she should not be permitted to recover the amount of the certificate. In the petition for administration the plaintiff stated that the insured died in Ontario, and was at the time of his death a resident of Erie county, Nevi York; that he died seized of no. real estate situated within the State of Hew York nor chattels. The letters issued to the plaintiff recited that the insured was late of Ontario. It appeared undisputed upon the trial that the insured was not a resident of this State when he died, but was a resident of Canada. The plaintiff herself so testified. The only fact stated in the petition giving the surrogate of Erie county jurisdiction to appoint plaintiff administratrix was residence in Erie county. (See Code Civ. Proc. § 2476.) When on the trial this fact was shown.and conceded to be untrue the invalidity of the letters was established and plaintiff could not maintain the action. There is no question but that the letters could be so attacked for want of jurisdiction in this action. (Code Civ. Proc. § 2473; Warren v. Union Bank of Rochester, 157 N. Y. 259, 273 ; Hoes v. N. Y., N. H. & H. R. R. Co., 173 id. 435, 442 ; Ziemer v. Crucible Steel Co., 99 App. Div. 169, 171.)

The decree granting plaintiff letters cannot be upheld now, by showing that property of the insured was brought into the State after his death. Ho such facts were presented to the surrogate and he did not act on them. His jurisdiction cannot be upheld now by

showing, facts which were not before him nor acted upon by him when he made the decree. ' ■ .

This is a very bold case of attempting to import a litigation from Canada, where it belongs, to .the State of Hew York, a practice that was severely condemned in the cases above cited.

The matter should go to Canada where it belongs.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.