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and 123 New York State Reporter of administration with the will annexed to him, or to such other person or persons having prior right thereto, and that a citation be issued to persons having a prior right, including the public administrator of the county of New York, to show cause why such a decree should not be made. A citation was issued to the necessary parties, on the return of which the executors named in the will appeared, and objected to the granting of such letters, upon the ground, among others, that it appeared from the petition and answer thereto that the surrogate of the county of New York did not have jurisdiction to grant the same. The objection was overruled, and a decree entered that, unless the executors named in the will, or some one of them, within 20 days from the entry of the decree, took out ancillary letters testamentary upon the estate of the deceased, then and in that event the application of the petitioner was granted, and ancillary letters of administration with the will annexed should thereupon issue to him, or to some other suitable and proper person, as the surrogate might then designate.

It is from this decree that the executors have appealed. They assert that the decree is invalid principally upon the ground that upon the conceded facts the Surrogate's Court did not have jurisdiction of the subject-matter, and therefore had no power to make the decree. The conceded facts are that the testator was a resident of New Jersey, and died in that state; that his will has been there probated, and letters testamentary issued to the executors, all of whom reside therein ; that the petitioner is now, and ever since the death of the testator has been, a resident of that state; that there are no creditors of the estate of the deceased residing in the state of New York, and there is now no personal property within such state; that the estate is solvent. In connection with these facts, it however appears from the petition that the testator left real estate in the state of New York, which was disposed of by his will, and at the time of his death had personal property therein; that the petitioner is a creditor of the estate in a considerable amount. This latter fact, however, is denied by the answer, and in connection therewith it is asserted that in January, 1892, the petitioner commenced an action in the Supreme Court of the state of New York against the deceased for an accounting, which action was never brought to trial, but was pending at the time the testator died; that in 1897 he recovered a judgment against the petitioner in the Chancery Court of the state of New Jersey for $6,701.30, which, with interest thereon, now amounts to upwards of $9,000, no part of which has been paid; that in pursuance of the laws of the state of New Jersey the executors have duly advertised for claims against the estate represented by them, and that no claim has been filed by the petitioner, although the time in which to do so expired over two years ago; also that the petitioner has no valid claim against said estate, nor are there any creditors of it.

It is unnecessary at this time to determine whether the Surrogate's Court had jurisdiction to issue ancillary letters or letters of administration with the will annexed, because, if it did, such jurisdiction ought not, upon the facts presented, to have been exercised. The petitioner, as well as the executors, reside in New Jersey. All of the personal property of the decedent is in that state, and it is conceded that the estate is solvent. Under such circumstances the petitioner should resort to the courts of that state to enforce his claim. The Supreme Court has many times refused to entertain jurisdiction in certain cases between nonresidents, and has condemned the practice of importing such litigation into this jurisdiction. In Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 19 N. E. 625, 2 L. R. A. 636, the court, referring to this subject, said:

"The discrimination between resident and nonresident plaintiffs is probably based upon reasons of public policy that our courts should not be vexed with litigation between nonresident parties over causes of action which arose outside of our territorial limits. Every rule of comity and of natural justice and of convenience is satisfied by giving redress in our courts to nonresident litigants when the cause of action arose or the subject-matter of the litigation is situated within this state."

This case was cited with approval in Hoes v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435, 66 N. E. 119, where the court strongly reprobated a device by which it was sought to acquire jurisdiction over a foreign corporation by bringing personal property of an intestate into this state, and then applying for letters of administration upon the ground that there was personal property within the state. In Collard v. Beach, 81 App. Div. 582, 81 N. Y. Supp. 619, this court held that it would not retain jurisdiction of an action brought by a resident of the state of Connecticut against another resident of that state upon a cause of action arising therein to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant, unless special facts and circumstances were shown to exist which required such retention. And in Ferguson v. Neilson (Sup.) 11 N. Y. Supp. 524, Van Brunt, P. J., said that it was against the settled policy of the state to permit our courts to be used by nonresidents for the redress of personal injuries received in the state of their domicile.

I am of the opinion that the practice which prevails in the Supreme Court as to its exercising jurisdiction in certain cases between nonresidents should prevail in the Surrogate's Court, where claims are made against an estate all the personal property of which is in another state, in which the claimant as well as the executors reside. It is true there is real estate in the state of New York, but this cannot be reached for the payment of debts unless the personal property is insufficient for that purpose. The chief object of the provisions of the Code of Civil Procedure as to ancillary letters of administration of estates is to preserve and protect the claims of creditors residing in this state. This is apparent when certain sections are considered. Thus section 2698 requires that a citation must issue to all such creditors before ancillary letters can be granted. Section 2699 provides that upon the return of the citation the surrogate must ascertain as nearly as he can do so the amount of debts due or claimed to be due from the testator to residents of the state, and, before ancillary letters are issued, the person to whom they are awarded must qualify by giving a bond, which may, and 123 New York State Reporter in the discretion of the surrogate, be limited to such a sum, not exceeding twice the amount which appears to be due from the decedent to the residents of the state, as will effectually secure the payment of these debts; and the only authority which is expressly given to a surrogate to direct any other disposition of funds in the hands of one holding ancillary letters than the transmission of the same to the state, territory, or country where the principal letters were granted, to be disposed of pursuant to the laws thereof, is section 2701. There discretionary power is vested in the Surrogate's Court to direct the payment, out of moneys received in this state, of such debts as the testator owed to persons residing in the state. Considering, therefore, the object sought to be accomplished by the provisions of the Code of Civil Procedure relating to ancillary letters of administration, in connection with the fact that the testator at the time of his death lived in New Jersey, that his executors and this petitioner now live there, that the estate is solvent, and all the personal property is now in that state, I am of the opinion the surrogate should have refused to entertain jurisdiction.

The sections of the Code of Civil Procedure (sections 2643 and 2695) cited in the memorandum of the surrogate as authority for granting the letters have no application, and do not give a surrogate jurisdiction to grant ancillary letters of administration upon the petition of a claimant of an estate situated as this one is. Section 2643 provides that:

“If no person is named as executor in the will or selected by virtue of a power contained therein, or if at any time by reason of death, incompetency adjudged by the surrogate, renunciation

or revocation of letters there is no executor or administrator with the will annexed qualified to act, the surrogate must, upon the application of a creditor of the decedent or a person interested in the estate of the decedent,

issue letters of administration with the will annexed."

None of the conditions named in this section exist. Here all of the executors named in the will have qualified and are acting. Section 2695 simply provides that, where a will of personal property made by a person who resided out of the state at the time of the execution thereof, or at the time of his death, has been admitted to probate where it was executed, or where the decedent resided at the time of his death, the Surrogate's Court having jurisdiction of the estate must, upon an application made as prescribed in article 7 of chapter 18, tit. 3, accompanied by a copy of the will and of the foreign letters, if any have been issued, authenticated as prescribed in such article, record the will and foreign letters, and issue thereupon ancillary letters testamentary or ancillary letters of administration with the will annexed, as the occasion requires. When this section is read in connection with the other sections relating to ancillary letters, it is clear that the Surrogate's Court can obtain jurisdiction only upon the petition of the person to whom letters of administration or letters testamentary have been issued in another state, or else upon the petition of a creditor residing in this state. No provision is made by which jurisdiction can be invoked by a creditor residing in another state, and for that reason the decree

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here, in any event, would have to be modified, inasmuch as it directs that “ancillary letters” issue to the petitioner. If the petitioner could obtain letters at all, it would be only by virtue of the jurisdiction conferred upon the surrogate under subdivision 4 of section 2476 of the Code of Civil Procedure, and this upon the ground that the decedent left real estate in the county of New York disposed of by his will. These would be principal, and not ancillary, letters. But this real estate, as already indicated, cannot be sold for the payment of debts until the personal property has been exhausted, and there is no proof but what there is sufficient personal property to pay all of the debts in full; indeed, it is admitted that the estate is solvent. It would seem, therefore, under this subdivision, to institute a proceeding for letters or to confer jurisdiction upon the surrogate to grant them something more would have to be set out in the petition than the bare statement that the decedent left real estate in the county where the application was made and the petitioner was a claimant residing in another state. But whether this be correct or not, I am of the opinion that upon the conceded facts the surrogate ought to have denied the petitioner's application.

It follows, therefore, that the decree appealed from must be reversed, with costs, and the application of the petitioner denied, with costs. All concur.

(95 App. Div. 253.)

O'REILLY V. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. June 24, 1904.) 1. STREET RAILROADS-LEASE OF LINE-STATUTES.

Laws 1885, p. 525, c. 305, making it lawful for any street surface railroad company to contract with another such company for the use of their respective roads or any portion thereof, subject to certain provisions and restrictions, and Laws 1890, p. 1082, c. 565, and Laws 1892, p. 1382, c. 676, continuing the privileges of contracting and the obligations incurred thereby, are in pari materia, and for the purposes of construction must be read

together. 2. SAME.

Under those statutes providing that street railroads entering into such contracts shall carry or permit any other party to such contract to carry, between any two points on the roads or portions thereof embraced in the contract, any passenger desising to make one continuous trip between such points for one single fare not higher than the fare lawfully chargeable by either of the parties for an adult passenger, the Legislature intended, in consideration of the privilege of contracting, to require that the lines so brought together under the contracts should carry passengers for one single fare between any two points on the lines, "to the end that the

public convenience may be promoted,” as expressed therein. 3. SAYE.

Street railroads accepting the provisions of statutes permitting them to enter into a contract for leasing lines of other companies, as authorized thereby, are bound to assume the duties and obligations imposed by the

statutes as a consideration for the privilege. 4. SAME-TRANSFERS-REFUSAL-PENALTY.

In an action to recover the penalty provided by Laws 1892, p. 1406, C. 676, $ 104, providing that any street surface railroad company operating the lines of another by lease or consolidation, permitted by the act, re

and 123 New York State Reporter fusing on demand to issue a transfer to any person paying one single fare, entitling the passenger to one continuous trip to any point or portion of any road embraced in the contract, shall be liable to a penalty of $50, to be recovered by the person aggrieved, it appeared that defendant was the operating company of several leased lines, under a contract entered into pursuant to the statute. Plaintiff was a passenger on one of such lines, and demanded a transfer to another of the leased lines, which was refused. Held, that defendant's liability for the penalty could not be defeated because plaintiff's initial trip was on one of defendant's leased lines, to be completed on another of such lines, instead of on the defendant's line, to be completed on one or the other of the lessor company's lines.

Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by Luke O'Reilly against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

Charles A. Collin, for appellant.
Louis Ehrenberg, for respondent.

WOODWARD, J. The plaintiff, on the 8th day of December, 1903, was a passenger on a north-bound car on the Vanderbilt avenue line of the Nassau Electric Railroad Company, desirous of making a continuous trip between his starting point on that line and his point of destination on the Crosstown line of the Brooklyn City Railroad Company. This continuous trip involved a change of cars at the intersection of the Vanderbilt avenue line of the Nassau Company and the Crosstown line of the Brooklyn City Company. The plaintiff had paid his fare of five cents on the Vanderbilt avenue line, and demanded of the defendant, the Brooklyn Heights Railroad Company (which is operating both of the lines involved in the controversy, under independent leases made in 1893 and 1900, respectively), a transfer ticket entitling him to transportation over the Crosstown line to his point of destination, without additional fare. The defendant refused to give the plaintiff such a transfer ticket, and refused to carry him on the Crosstown line without the payment of an additional fare of five cents; whereupon he brought this action to recover the penalty of $50 for such refusal, under the provisions of section 104 of the railroad law (Laws 1892, p. 1406, c. 676). The Municipal Court rendered judgment for the plaintiff, with costs, and this appeal on the part of the defendant brings up the question whether, as a matter of law, the defendant, under the facts of this case, is liable for the penalty provided by the statute.

The Brooklyn City Railroad Company and the Nassau Electric Railroad Company were incorporated and operated their lines under charters which gave them no right to consolidate with other lines of railroad, except as provided by the Laws of 1884 and subsequent amendments. By the provisions of chapter 252, p. 314, of the Laws of 1884 (section 15), it was provided that "it shall be

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