Einstoss' Estate, In re

• Decision Date: 26 February 1970
• Citation: 26 N.Y.2d 181,257 N.E.2d 637,309 N.Y.S.2d 184
• Parties: , 257 N.E.2d 637 In the Matter of the ESTATE of Sigmund EINSTOSS, Deceased. TERRITORY OF ALASKA and State Of Alaska, Appellant, v. Irving GREENBERG, as Administrator of the Estate of Sigmund Einstoss, Deceased, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 184

309 N.Y.S.2d 184

26 N.Y.2d 181, 257 N.E.2d 637

In the Matter of the ESTATE of Sigmund EINSTOSS, Deceased.

TERRITORY OF ALASKA and State Of Alaska, Appellant, v. Irving GREENBERG, as Administrator of the Estate of Sigmund

Einstoss, Deceased, Respondent.

Court of Appeals of New York.

Feb. 26, 1970.

Paul A. Golinski, New York City, and Eric E. Wohlforth, Anchorage, Alaska, for appellant.

Samuel W. Sherman, New York City, for respondent.

FULD, Chief Judge.

The petitioner, the administrator of the estate of Sigmund Einstoss, brought this proceeding to disallow a claim against the estate by the State and Territory of Alaska. Mr. Einstoss had died in 1954, and Alaska's claim was based on a judgment rendered against him by the United States District Court for the Territory of Alaska in 1957, three years after his death. The New York administrator was never substituted as a party to the Alaskan proceeding, and the question posed on this appeal--here by our leave--is whether that judgment is entitled to full faith and credit and is enforceable against the decedent's assets here.

In 1951, Einstoss purchased land in Alaska, then a Territory, upon which he operated a salmon cannery. The property was subject to a mortgage of $25,000 and, in 1954, following Einstoss' default on his mortgage payments, the mortgagee instituted a foreclosure proceeding against him in the Territorial court. The Territory had filed a lien on the property for unpaid franchise taxes on the operation of the cannery, and it was named as a party defendant in the foreclosure proceeding. At the time, Einstoss was in Seattle, Washington, and was, therefore, not subject to the in personam jurisdiction of the Alaskan court. Nevertheless, upon the express representation of the mortgagee that she would satisfy any judgment solely out of the mortgaged property, Einstoss entered an 'appearance' and admitted his liability for the amount outstanding on the mortgage note--$11,000 plus interest.

Two days after Einstoss' appearance, the Territory filed a cross complaint against him seeking a judgment for the unpaid franchise taxes and foreclosure of its lien. It procured an order from the court--pursuant to section 1655 of title 28 of the United States Code ¹--authorizing it to serve the cross complaint 'wherever the defendant * * * may be found.' In accordance with that order, the cross complaint was personally served upon Einstoss in Seattle on April 26, 1954, a copy having been previously mailed to an Alaskan law firm which, though it represented Einstoss, had not appeared for him in the action.

On May 17, 1954, the day before he was required to answer the cross complaint, Einstoss died. The Territory, however, apparently unaware of his death, procured an 'entry of default' from the clerk of the court precluding him from defending against the cross claim (see Fed.Rules Civ.Pro., rule 55, subd. (a)). Despite this order, the decedent's ancillary administrator in Alaska attempted to appear in the action and file an answer but--in view of the default--her answer was, in the claimant's words, 'properly treated by the court as a nullity'. The mortgagee and the Territory then proceeded to litigate the priority of their respective liens and the Territory eventually prevailed. (See Schlothan v. Territory of Alaska, 9 Cir., 276 F.2d 806, cert. den. 362 U.S. 990, 80 S.Ct. 1079, 4 L.Ed.2d 1022.) A final judgment was eventually entered against the decedent for his unpaid taxes--in an amount in excess of $95,000--and, in 1961, Alaska, at that time a State, sold his property for about one third of that sum. Finally, in March of 1965, 11 years after Einstoss' death, his domiciliary administrator in New York was notified of the Alaskan judgment in a letter asserting a claim against the estate for the deficiency.

The Surrogate's Court disallowed the claim, noting that the Alaskan court had never ordered that the New York administrator be substituted for the decedent as authorized under rule 25 (subd. (a), par. (1)) of the Federal Rules of Civil Procedure. ² Since the petitioner had not been a party to the proceeding in Alaska, the Surrogate reasoned that 'the judgment has no binding effect as a claim against the assets of the decedent's estate,' and the resulting order was affirmed by the Appellate Division.

It should be pointed out at the outset that the underlying claim upon which the Alaskan judgment was based--the decedent's liability for unpaid franchise taxes--is not, in itself, enforceable outside of Alaska. (See City of Philadelphia v. Cohen, 11 N.Y.2d 401, 230 N.Y.S.2d 188, 184 N.E.2d 167, cert. den. 371 U.S. 934, 83 S.Ct. 306, 9 L.Ed.2d 270; State of Colorado v. Harbeck, 232 N.Y. 71, 133 N.E. 357.) Consequently, the only way the Territory could enforce its claim against the decedent's New York assets was to obtain a judgment in Alaska which would be binding upon the New York administrator and entitled to full faith and credit in the courts of this State (U.S.Code, tit. 28, § 1738). The judgment upon which Alaska's claim is grounded is not entitled to such recognition not only because the New York administrator was never made a party to the proceeding but also because the Alaskan court never acquired in personam jurisdiction for the tax claim during Einstoss' lifetime.

Relying on the doctrine of continuing jurisdiction, the claimant asserts that, once Einstoss had appeared in response to the initial claim by the mortgagee, the court retained jurisdiction over him for all further proceedings in the action, including its cross claim for taxes. Although this is the general rule, the doctrine has its limits and, where a party appears but takes no further action in a case, a court's jurisdiction does not go beyond the general subject matter of the suit in which he appeared. (See Reynolds v. Stockton, 140 U.S. 254, 264--265, 11 S.Ct. 773, 35 L.Ed. 464; see, also, Leflar, American Conflicts Law, § 28, p. 51.) Thus, in the present case, Einstoss' appearance in an action to foreclose a mortgage, did not, in itself, render him subject to the Territory's Unrelated cross claim for taxes.

In the Reynolds case (140 U.S. 254, 11 S.Ct. 773, Supra), for instance, a group of policyholders had brought an action against the New York Superintendent of Insurance to recover funds which had been deposited with him by a defunct insurance company. The receiver of the company's assets in New Jersey was named as a nominal party and entered an appearance without contesting the action. After the trial, however, in New York court entered a judgment against the New Jersey receiver in an amount exceeding $1,000,000 and the policyholders brought suit in New Jersey to enforce the judgment. The Supreme Court held that the New York judgment was not entitled to full faith and credit since the jurisdiction conferred by the receiver's appearance did not extend to the question of his own liability but only to that of the Superintendent of Insurance (140 U.S., at p. 265, 11 S.Ct., at p. 776): 'If the fact of a judgment rendered in a court of one state does not preclude inquiry in the courts of another, as to the jurisdiction of the court rendering the judgment over the person or the subject-matter, it certainly also does not preclude inquiry as to whether the judgment so rendered was so far responsive to the issues tendered by the pleadings as to be a proper exercise of jurisdiction on the part of the court rendering it. Take an extreme case: Given a court of general jurisdiction, over actions in ejectment as well as those in replevin; a complaint in replevin for the possession of certain specific property, personal service upon the defendant, appearance and answer denying title. Could (there being no subsequent appearance of the defendant and no amendment of the complaint) a judgment thereafter rendered in such action for the recovery of the possession of certain real estate be upheld? Surely not, even in the courts of the same state. If not there, the constitutional provision quoted (the Full Faith and Credit Clause) gives no greater force to the same record in another state.' (Emphasis supplied.) ³

The present is quite similar to the 'extreme case' instanced by the Supreme Court in Reynolds. The action in which Einstoss appeared was a proceeding to foreclose a mortgage, involving a maximum liability, on his part, of little more than $11,000 (considerably less than the value of the property over which the court already had in rem jurisdiction) but the judgment which eventually resulted was based on an entirely different obligation, his liability to the Territory for taxes, and amounted to nearly $100,000. The mere fact that the Federal Rules permitted his claim to be asserted in a cross complaint does not alter the requirement that the court must obtain jurisdiction over the defendant anew before it may entertain a new and entirely unrelated claim against him. (See United States v. Krasnov, D.C., 109 F.Supp. 143, 147.) As one authoritative commentator has put it (Leflar, American Conflicts Law, § 28, p. 51), a party may not 'under the guise of continuing jurisdiction be subjected to what is essentially a new suit'.

When the Territory sought and obtained an order, under section 1655 of title 28 of the United States Code, authorizing personal service upon a defendant outside the Territory, it, in effect, acknowledged that Einstoss was not yet subject to the court's jurisdiction for the purposes of its cross claim. Section 1655 expressly recites that it is available only against an absent defendant who 'does not voluntarily appear,' and service under that provision is neither necessary nor proper where jurisdiction has already been attained. Once the section was invoked the court could, of course, have proceeded to enter a judgment on the cross claim but, as section 1655 declares it could only affect 'the property which (was) the subject of the action' and could not...