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ment. It simply states, as to Peter Wurm, that he was never heard of after his departure upon his travels, “although diligent efforts have been made to find him.” The only support to be found for even this insufficient statement in the certificate is the general allegation by plaintiff, in an affidavit attached to and referred to in the certificate, that:
"She and her father and mother and other members of her family have made every effort to trace said Peter Wurm, but have been unable to locate him or find any trace of him since 1854.”
It is quite apparent that the court, when it made the order for substituted service on Peter Wurm, had not before it any legally satis factory evidence that diligent, or any, effort had been made to find Peter Wurm or his heirs. The court, therefore, in making the order that the action be commenced and that service upon Peter Wurm be made by advertisement and mailing, acted, so far as concerned said Peter Wurm, without any facts upon which such an order could be based, and the attempted service was futile to invest the court with jurisdiction to make a decree barring any claim he or his heirs might hereafter assert. Partenfelder v. People, 157 App. Div. 462, 142 N. Y. Supp. 915; 211 N. Y. 355, 105 N. E. 675. This objection, being jurisdictional, may be taken upon appeal from the final judgment. And even the order that was made does not appear to have been complied with, for we can find in the record no proof that a copy of the summons and complaint was ever mailed. Even the evidence given on the trial as to any attempts to find Peter Wurm is wholly unsatisfactory: It consisted merely of very general and vague testimony by plaintiff that in 1865 or 1866, while she was a very young girl, her parents inserted an advertisement printed in the German language and sent a letter to some one in Westphalia. Of any serious or more recent effort there was no proof whatever.
[8, 9] It may not be out of place to call attention to the wide discrepancy between the certificate of the official examiner and the testimony given on the trial. It is stated by the official examiner, relying upon an affidavit by plaintiff, that:
“Peter Wurm borrowed part of the purchase money for said premises from her father, and after the conveyance to him, and in or about the month of March, 1854, the said Wurm departed on a journey to New Orleans and Mexico, and was never heard of again, although diligent efforts have been made to locate him, and that at the time of his departure said Wurm was unmarried and had no living relatives. That before his departure the said Wurm delivered to Peter Biecker, the father of Catherine Meighan, the said deed, together with a letter in the German language to the effect that if he, the said Wurm, did not return from four to ten years, that then and in that event Peter Biecker, father of said Catherine Meighan, was to be and become the owner of said premises in consideration of the money advanced by him for the purchase price and for the payment of taxes,” etc.
The official examiner states that these facts appear from an affidavit of said Catherine Meighan and from other papers in possession of and conversations had with her. The affidavit of Catherine Meighan upon which the examiner thus relies shows that she was born on February 27, 1851, and thus was less than two years old when Peter Wurm signed the paper relied upon, and less than four years old
when the deed to him appears to have been made. Her testimony as to what took place at that time, and as to whether Peter Wurm was unmarried and had no living relatives, is certainly lacking in probative force. There was no evidence produced on the trial to show that Peter Wurm borrowed any part of the consideration from Peter Biecker, and the paraphrase by the official examiner of the purport of the paper signed by Peter Wurm is wholly inaccurate and misleading
Official examiners of titles are public officers, and great importance is attached by the registration law to their certificates and abstracts. It is their duty to state no facts regarding the sufficiency of a title carelessly, or without proof of the accuracy of the facts stated. This duty seems to have been overlooked by the examiner who certified to the title in question. No better illustration is needed of the propriety of the Attorney General's scrutiny of applications for the regis tration of titles than is afforded by the present case.
The judgment appealed from must be reversed, and the complaint dismissed, with costs to the appellant in this court and the court below. All concur.
BETTS v. BETTS. (No. 6884.)
(Supreme Court, Appellate Division, First Department. February 19, 1915.)
JUDGMENT (8 619*)-SETTING ASIDE DEFAULT.
A default interlocutory judgment, annulling a marriage on the ground that, when the marriage was entered into, defendant was prohibited by a judgment from marrying, will not be set aside, where she had had, in a prior action, an opportunity to establish the identical defense sought to be interposed in the present action, and, when presented in the prior action, she conceded that she could not establish it.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. $$ 1132, 1667 ; Dec. Dig. 8 619.*]
On reargument. Granted, former order reversed, and order appealed from affirmed.
For former opinion, see 150 N. Y. Supp. 946. See, also, 151 N. Y. Supp.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
MCLAUGHLIN, J. This action was brought to procure a judgment adjudging a marriage between the parties to be void, on the ground that when the contract was entered into the defendant was, by a decree of the court, prohibited from remarrying. The defendant made default in pleading, and an interlocutory judgment was entered, adjudging that at the expiration of three months, unless the court otherwise ordered, the plaintiff would be entitled to the relief prayed for in the complaint. A few days before the expiration of the three months, the defendant made a motion to vacate the interlocutory judgment, excuse her default in pleading, and permit her to interpose *For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
an answer setting up a marriage in New Jersey. The motion was denied, and she appealed. After a consideration of the appeal, the court was of the opinion, notwithstanding defendant's delay in moving to excuse her default, that she ought to have an opportunity of presenting her alleged defense. The order was therefore reversed, and such leave given.
Plaintiff then moved for a reargument of the appeal, upon the ground, among others, that the court had overlooked certain facts which established that her application was not made in good faith. A reargument was ordered, and a further consideration of the record does show that the plaintiff's contention is correct. Prior to the commencement of this action the defendant brought an action in this court for a separation, alleging that she was married to the present plaintiff in the state of New York. An answer was interposed, alleging that at the time the marriage took place the plaintiff in that action was prohibited by a decree of the Supreme Court of the state of New York from again marrying during the life of a husband who had procured a decree of divorce from her. After that answer was interposed, an amended complaint was served, which alleged that the marriage took place in the state of New Jersey. An answer was then interposed to the amended complaint, which denied that a marriage had taken place in New Jersey. After issue was joined, the defendant moved for a bill of particulars of the New Jersey marriage. Plaintiff then moved for leave to withdraw the amended, and substitute the original, complaint in its place, or for leave to discontinue the action upon the ground, according to an affidavit of her attorney, that the plaintiff would be “unable to establish said marriage in a court of law for lack of proof; that
it would be impossible to serve said bill of particulars, and, being unable to furnish proof of the New Jersey marriage, plaintiff cannot proceed upon that cause of action."
It thus appears that defendant has had an opportunity to establish the identical defense which she now seeks to interpose in this action, and, when it was presented, she conceded she could not do so, and abandoned such claim. Under these circumstances, the motion to vacate the interlocutory judgment and permit defendant to interpose a defense was properly denied, and for that reason the order appealed from should be affirmed, without costs. All concur.
In re HILL'S ESTATE. (No. 6893.) (Supreme Court, Appellate Division, First Department. February 19, 1915.) 1. EXECUTORS AND ADMINISTRATORS ($ 35*)-REMOVAL OF ADMINISTRATOR
Under Code Civ. Proc. § 2569, authorizing the removal of an administrator who bad willfully refused, or without good cause, neglected to obey any lawful direction of the surrogate, an administrator of a decedent, having no property in the state but a cause of action pending in
the Supreme Court, cannot be removed for a refusal to verify papers •For other cases see same topic & $ NUMBER in Dec. & Am, Digs. 1907 to date, & Rep'r Indexes
necessary to his substitution as party plaintiff in place of decedent to prosecute an appeal, where all the next of kin were satisfied with the decision, and did not desire further litigation.
[Ed. Note. For other cases, see Executors and Administrators, Cent.
Dig. $$ 227–262; Dec. Dig. $ 35.*] 2. EXECUTORS AND ADMINISTRATORS (8 35*)_REMOVAL-PROCEEDINGS.
It is irregular to ingraft on a proceeding to appoint an administrator an entirely separate proceeding to remove an administrator appointed.
[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. $8 227–262; Dec. Dig. § 35.*] Appeal from Surrogate's Court, New York County. In the matter of the application for letters testamentary of Marie Hill, deceased. From an order of the surrogate, removing Mrs. Marie J. M. Lawrence, administratrix, she appeals. Reversed.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
Rounds, Schurman & Dwight, of New York City (Carl A. Hansmann, of New York City, of counsel), for appellant.
Moses, Morris & Henderson, of New York City (Isham Henderson, of New York City, of counsel), for respondent Healy, as temporary administrator.
CLARKE, J. In 1913 Mrs. Marie Hill, a childless widow residing in Dresden, Germany, commenced an action against the Guaranty Trust Company and J. Lynch Pendergast, as trustees under the last will and testament of Josephine Stephani, deceased. Alphonse J. Stephani, and the Equitable Trust Company of New York, as committee of the estate of Alphonse J. Stephani, to construe the will of Josephine Stephani, and to have declared unlawful a certain accumulation of income thereunder in the hands of said trustees, arising under the trust created by said will, of which trust Alphonse J. Stephani was the beneficiary for life, with remainder “to my said sister Marie Hill absolutely and forever or in case she then be dead to her children share and share alike," upon the theory that said accumulation was unlawful, and was, under the statute, the property of Marie Hill as the person presumptively entitled to the next eventual estate. That action was tried at Special Term, and resulted in a judgment in favor of the plaintiff. An appeal was taken by the Equitable Trust Company, as committee of the estate of Alphonse J. Stephani, a life convict, and as his guardian ad litem. This court unanimously reversed the judgment, and directed the complaint to be dismissed. Hill v. Guaranty Trust Co., 163 App. Div. 374, 148 N. Y. Supp. 601. Judgment of reversal was entered August 14, 1914.
Mrs. Hill died in Dresden on August 23, 1914. Without knowledge of her death, her attorneys filed notice of appeal to the Court of Appeals on September 1, 1914. On October 14, 1914, Mrs. Hill's former attorneys in said action, alleging that they were persons interested in her estate and were creditors thereof by reason of certain disbursements made by them as her attorneys in said action, filed a petition in the Surrogate's Court for the appointment of a temporary administra•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
tor of her goods, chattels, and credits, and for the issuance of citation to the next of kin, including the Equitable Trust Company, as committee of the estate of Alphonse J. Stephani. The petition set forth that the only property of any kind left by deceased within the state of New York was the said cause of action pending in the Supreme Court. On November 19, 1914, an order was made granting temporary administration to Mrs. Marie J. M. Lawrence, a niece of Mrs. Hill. Mrs. Lawrence, her sister, Mrs. Sophie E. M. Leith, and the life convict, Alphonse J. Stephani, are the sole next of kin of Mrs. Hill. The order of the surrogate provided that the letters of temporary administration should be limited to the prosecution of said cause of action. Mrs. Lawrence subsequently declined to verify papers presented by the former attorneys of Mrs. Hill, necessary to procure her substitution as party plaintiff in said suit in the Supreme Court, and declined, after consultation with her sister, to authorize the taking of an appeal to the Court of Appeals therein, because"she considers the claim that was set up in behalf of Marie Hill in said suit, to the accumulated income of the trust created for the benefit of Alphonse J. Stephani, as most unjust and contrary to the wishes and intentions of the testatrix, Josephine Stephani, and that deponent's sister, Mrs. Sophie E. M. Leith, agrees with her; that they both feel that the institution of said suit was a grave mistake and a wrong against Alphonse J. Stephani, and that they are opposed to the further prosecution thereof; and that they, together with said Alphonse J. Stephani, are the sole next of kin of said Marie Hill, deceased.”
She also says that Mrs. Hill left a last will and testament of which Heinrich Jucho, a notary public of No. 12 Neue Maizers Strasse, Frankfort-a-Main, Germany, is the executor, and that further prosecution of said suit is not necessary for the protection of creditors of the estate of Mrs. Hill, as she left an ample estate in Germany, valued at from $50,000 to $100,000.
The petitioners thereupon, in the same proceedings in the Surrogate's Court in which Mrs. Lawrence had been appointed temporary administratrix, made a motion, by an order to show cause why she should not be removed. Said motion was granted, she was removed, and Thomas M. Healy was appointed as such temporary administrator; his powers being also limited to the prosecution of the appeal from the judgment referred to. From this order the Equitable Trust Company, as committee of the estate of Alphonse J. Stephani, appeals.
 Section 2569 of the Code of Civil Procedure provides grounds upon which an administrator may be removed. The only ground therein provided which by any possibility would apply is subdivision 3:
"Where he has willfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate contained in a decree or order, or any provision of law relating to the discharge of his duty.”
Mrs. Lawrence did not disobey any direction of the surrogate contained in the decree or order, because none such was made; nor has it been found as a fact that she has willfully or without good cause refused or neglected to be substituted as plaintiff in the action in the Supreme Court and to take an appeal to the Court of Appeals, if it is to be inferred that she was appointed administratrix for that purpose.