McMaster v. Gould

• Decision Date: 15 July 1925
• Citation: 240 N.Y. 379,148 N.E. 556
• Parties: McMASTER et al. v. GOULD et al.
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 379

148 N.E. 556

McMASTER et al.

v.GOULD et al.

Court of Appeals of New York.

July 15, 1925.

On rehearing. Order affirmed.

For former opinion, see 239 N. Y. 606, 147 N. E. 214.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered July 2, 1924 (210 App. Div. 806, 205 N. Y. S. 935), which reversed an order of Special Term granting a motion to substitute the executors of George J. Gould in his place and stead as parties defendant in this action and denied said motion. The following question was certified:

‘Did the court at Special Term have power to substitute the executors of the last will and testament of George J. Gould, deceased, appointed by the Orphans' Court of New Jersey, where his will was probated, as parties defendant herein without their consent, in place of their testator, pursuant to the proceedings instituted by the plaintiffs herein for that purpose, and to revive as against the executors this action, which at the time of testator's death was pending in the Supreme Court of this state?’

See 239 N. Y. 606, 147 N. E. 214; 240 N. Y. 641, 148 N. E. 739.

Louis Marshall, of New York City, for appellants.

William Wallace, Jr., of New York City, for respondents.

POUND, J.

This is an action to recover a judgment in personam. The motion is for leave to continue the action against foreign executors of a deceased defendant. The executors are not domiciled in this state, and the purpose of the action is solely to establish the personal liability of defendants. After our decision herein was handed down to the effect that the action could not be continued, chapter 253 of the Laws of 1925 took effect. It amends section 160 of the Decedent Estate Law (Consol. Laws, c. 13) by adding a subdivision thereto which reads as follows:

‘2. An action or proceeding pending in any court of this state in which the court shall have obtained jurisdiction of the person of a defendant or respondent who is domiciled in any other state, territory or district of the United States or in any foreign country shall, if the cause of action survives, not abate by reason of the death of such defendant or respondent, but his executor or administrator duly appointed in such state, territory or district of the United States or foreign country, shall, upon the application of the adverse party, and upon such notice as the court may prescribe, be brought in and substituted in the place of the decedent and the action or proceeding shall continue.’

Reargument in the light of the new statute was thereupon allowed.

We held in Helme v. Buckelew, 229 N. Y., 363, 128 N. E. 216, that section 1836a of the Code of Civil Procedure was not to be construed to remove the immunity of foreign executors or administrators from action in this state. In the current case the same rule was applied when it was sought to continue an action against the personal representatives of a deceased defendant, no satisfactory distinction being found between starting a suit and continuing it. The question of the constitutionality of a statute, which in terms permitted suit to be brought or continued against foreign executors and administrators, was not presented, but it is now presented. The respondent urges that we may not reach that question in this case.

[1][2] 1. It is contended that, as the subdivision added to section 160 by chapter 253, Laws 1925, was omitted from the later amendment of the same section by chapter 603, Laws 1925, it was by implication repealed. The two acts passed at the same session may not be construed as inconsistent if they may fairly be read otherwise. People ex rel. Chadbourne v. Voorhis, 236 N. Y. 437, 444, 141 N. E. 907. They may be fairly read otherwise. The title to chapter 253 is as follows:

‘An act to amend the Decedent Estate Law, in relation to suit by foreign executors and administrators and continuing actions and proceedings against such executors and administrators.’

The title to chapter 603 is as follows:

‘An act to amend the Decedent Estate Law, in relation to proof required to enable a foreign executor or administrator to sue and be sued in this state.’

It thus appears that the two amendments relate to wholly different matters, and are consistent, and that repeal of the former statute by the latter will not be implied.

[3] 2. It is contended that, because passed after the decision of the Appellate Division, subdivision 2, c. 253, cannot affect the review by this court of that decision. The case came to this court upon a certified question which reads as follows:

‘Did the court at Special Term have power to substitute * * * pursuant to the proceedings instituted by the plaintiff herein for that purpose?’

This court reviews the question certified and no other. The question of the effect of chapter 253 was not discussed or considered. It is a new question, presented for the first time in this court. The decision may not be invalidated by a statute passed subsequently. We cannot consistently answer the question in the affirmative, even though the constitutionality of the statute is upheld. In Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271, 144 N. E. 579, 36 A. L. R. 1310, we held that, where a procedural statute, intended to be retroactive and to apply to pending litigation, is enacted after judgment and pending appeal, the court may dispose of the case in accordance with the law as changed by the statute. But there the appeal was from a judgment and not on a certified question. If the court below was right when it certified the question, it is still right.

[4] Leaving procedural difficulties aside, the basic question is whether the statute (Laws 1925, c. 253) is constitutional. As reargument was ordered on that question, it should be answered. The rule to be applied is stated as follows:

‘Proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction, do not constitute due process of law.’ Pennoyer v. Neff, 95 U. S. 714, 733, 24 L. Ed. 565, 572.

The reasoning in Helme v. Buckelew, supra, clearly indicates that the law is unconstitutional as to foreign administrators. Following the leading case, consistency requires us to say that the statute registers a futile effort to bind foreign administrators by a judgment in personam, and as to them is unconstitutional in its inception. The foreign administrator as the official of another sovereignty exists only by virtue of the statute of another state, and has no legal existence in this state.

As to executors, the point was saved in the leading case, but was carefully considered by Cardozo, J. He points to a distinction. ‘The only effect of probate in their case is to authenticate an existing title.’ But he asserts:

‘We are not referred to any precedent in any court of final review which upholds our right to say that the foreign executor as executor is present in New York when neither domicile nor possession gives to the res to be administered a situs in New York.’ Page 369, 128 N. E. 218.

We must now extend our decision to cover the point. The intimation of the court is clear. The executor as individual and as an official is in the theory of law two persons. Even as to foreign executors, there must be a domicile or possession which gives to...