Johnston v. Wallis

• Decision Date: 15 January 1889
• Citation: 112 N.Y. 230,19 N.E. 653
• Parties: JOHNSTON et al. v. WALLIS et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 230

19 N.E. 653

JOHNSTON et al.

v.WALLIS et al.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, Second department.

Action for specific performance, brought by William S. Johnston et al. against Hamilton Wallis et al., executors of A. H. Wallis. Judgment for plaintiff was affirmed by the general term, and defendants appeal.

William G. Wilson, for appellants.

Thompson, Weeks & Lown, for respondents.

FINCH, J.

This is an action in equity to compel the specific performance by the vendors of a contract to sell and assign a judgment recovered by John McAnerney and others in the supreme court of this state against a corporation known as the ‘Hudson River Iron Company.’ The judgment was assigned to one Alexander H. Wallis, who was a resident of New Jersey, and died, leaving a last will and testament, which has been duly proved in that state, and by which the defendants were appointed executors. They have qualified, and entered upon the performance of their trust. They thereafter made a written contract with one Jacob Russell, all whose rights have passed to the present plaintiff, to sell and assign to him such judgment for a price to be fixed as follows: The judgment was a lien, or supposed to be a lien, upon certain lands under the waters of the Hudson river, near Poughkeepsie, in this state, and had no value beyond such lien. Arbitrators were chosen to fix the value of one acre of the upland, and that value, multiplied by the number of acres subject to the lien, was to be the purchase price of the judgment. That value was ascertained, the price tendered, and a deed duly demanded, which was refused, and thereupon this action was brought. The plaintiff had judgment, which the general term affirmed, and the defendants appealed to this court.

They rely mainly upon the proposition that as foreign executors they could not sue or be sued in this state, and acquire all their rights from and owe their responsibilities to another jurisdiction. That is the general rule, but in this state, at least, is confined to claims and liabilities resting wholly upon the representative character. In Lawrence v. Lawrence, 3 Barb. Ch. 74, the rule was declared to be applicable only to suits brought upon debts due to the testator in his life-time, or based upon some transaction with him, and does not prevent a foreign executor from suing in our courts upon a contract made with him as such executor. Of course, where he can sue upon such a contract, he may be sued upon it....