224 N.Y. 1, In re Heinze's Estate

Citation:224 N.Y. 1
Party Name:In the Matter of the Estate of F. AUGUSTUS HEINZE, Deceased. In the Matter of the Application of WALTER A. FULLERTON, as Administrator, Appellant. EDWIN GOULD, Intervening, Appellant; MADISON REAL PROPERTY AND SECURITY COMPANY et al., Respondents.
Case Date:May 28, 1918
Court:New York Court of Appeals
 
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224 N.Y. 1

In the Matter of the Estate of F. AUGUSTUS HEINZE, Deceased. In the Matter of the Application of WALTER A. FULLERTON, as Administrator, Appellant. EDWIN GOULD, Intervening, Appellant; MADISON REAL PROPERTY AND SECURITY COMPANY et al., Respondents.

New York Court of Appeal

May 28, 1918

Argued April 23, 1918.

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COUNSEL

James A. Leary for petitioner, appellant. The surrogate had jurisdiction of this proceeding. (Code Civ. Pro. §§ 2675, 2676, 2734; McQuaide v. Perot, N.Y. L. J., March 21, 1918.)

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Ralph Royall for Edwin Gould, appellant. The surrogate had jurisdiction in this proceeding. ( Madison R. P. & S. Co. v. Fullerton, N.Y. L. J. Dec. 13, 1916; Empire Kaolin Co. v. Fullerton, N.Y. L. J. Nov. 28, 1916; Matter of Watson, 215 N.Y. 209.)

Walter H. Dodd for Empire Kaolin Company, respondent. The surrogate never has had general equitable jurisdiction such as would enable him to set aside the contract of sale with respondent and the new Surrogate's Law did not give him such jurisdiction. (35 Cyc. of Law & Procedure, 331; Matter of Schnabel, 202 N.Y. 134; Matter of Moller, N.Y. L. J., June 7, 1916; Matter of Heinze, 179 A.D. 453; Freiberg v. E. I. Savings Bank, 168 A.D. 816.)

Franklin Bien for Madison Real Property and Security Company, respondent. The surrogate had no jurisdiction to try this question of title. ( Matter of Heinze, 179 A.D. 453.)

Emil J. Villanyi for Mutual Bank, respondent.

CARDOZO, J.

F. Augustus Heinze was the owner at the time of his death of 450, 000 shares of the stock of the West Dome Company, a mining corporation. On December 31, 1915, his administratrix, Ida M. Fleitmann, made a contract to sell these shares to the Empire Kaolin Company, a corporation controlled by her brother, Otto C. Heinze. The price was to be 20 cents a share. Fifty thousand shares were delivered at once upon payment of $10, 000. Four hundred thousand shares were deposited with the Mutual Bank, to be delivered from time to time as demanded and paid for by the buyer. The payments were to be completed, however, within three years. The Empire Kaolin Company assigned to another corporation its rights in half the shares deposited. Since

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then thirty thousand shares have been delivered by the depositary. Three hundred and seventy thousand shares remain.

In August, 1916, Mrs. Fleitmann was removed as administratrix, and the petitioner, Mr. Fullerton, was appointed in her place. He gave notice to the depositary, to the buyer, and to the buyer's assignee, that he disaffirmed the contract. He charged the administratrix with fraud and abuse of power. Buyer and assignee thereupon tendered the full price, and demanded delivery. On the depositary's refusal, they brought actions in the Supreme Court for specific performance, joining the administrator as a party. Those actions are still pending. The administrator now seeks to supersede them by a summary proceeding. He has filed in the Surrogate's Court a petition that the depositary be directed to return the...

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