Tompkins County Bank agt. Trapp.

his alleged indebtedness, &c. Had this section, like § 292, provided that the third party should be examined "in the same manner as a witness," or that "either party might examine witnesses in his behalf," then it would seem more clear that it was intended that the allegation of the creditor was to be traversed, and the question of fact settled by the court.

I think it will be seen by reading carefully §§ 294, 297 and 299 in connexion, that § 294 was intended to provide for such cases only, where the allegation of the creditor is undisputed by the third party; by § 297, it is provided that the judge may order any property of the judgment debtor, not exempt from execution in the hands of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of judgment; but this power conferred by § 297, of summarily disposing of the property of third persons is modified and limited by § 299, which provides, "if it appear that the person or corporation, alleged to have property of the judgment debtor, or indebted to him claims an interest in the property adverse to him or denies the debt, such interest or debt shall be recoverable only by the receiver, &c." Hence, it will be seen that if the third party deny the allegation of the creditor, the power of the court so far as he is concerned is at an end, except to forbid by order a transfer or disposition of such property or interest, until the receiver may commence and prosecute an action to judgment and execution.

In this case David Trapp denies the indebtedness, or that he has property, &c.; the referee or county judge had no right to try this disputed claim. (See People agt. Hulbert, 1st Code R., N. S., 75.) It could only be tried in an action. by the receiver. (Catlin agt. Doughty, 12 How. Pr. R., 457; Sherwood agt. N. Y. City R. R. Co., id., 136.) And if the court could not try it, why further investigate it? No purpose is to be answered so far as the proceedings before the county judge is concerned. He can make no

Tompkins County Bank agt. Trapp.

order under § 297, no matter how well he may be convinced that the claim of the third party is unfounded or how untruthful the denial of the debt, he is foreclosed by § 299, from further action.

But it may be claimed that the creditor is entitled to a rigid examination of the third party and to establish by his oath if he can, the allegation of the creditor of indebtedness, &c., and to show fraud in the transactions between the parties; that the claim of the third party is fictitious, and his denial of indebtedness false. I think this claim answered by the suggestions I have already made; if the examination of the party is desired with a view to its use in an action to be prosecuted by the receiver, such object could have been attained by calling him as a witness, in the proceedings against the judgment debtor, under § 295. On an examination under this latter section, as a witness, he would not have been excused from answering fully, because he set up a claim to the property. (See Sanford agt. Carr, 2 Abb., 462.)

This latter section I think was intended to aid the creditor in discovering the property of a fraudulent debtor by allowing a full and rigid examination as a witness, of any person the creditor might have reason to suspect, was concealing the property of the debtor, or indebted to him; but I am inclined to think that such is not the object of § 294, but that a party examined under it, can only be required to answer concerning his alleged indebtedness to the judg ment debtor, and as to the fact whether he has property belonging to him, and a general denial on oath of both propositions is all that can be required.

I therefore deny the motion; but as the question is a new one, and not free from doubt, without costs.

Gulick agt. Gulick.

SUPREME COURT.

JAMES C. GULICK, administrator, &c., respondent agt. ELLEN P. GULICK and FRANCES M. GULICK, an Infant, by her Guardian, &c., appellants.

Where the defendant was appointed administratrix in California, of the estate of her deceased husband, who was a resident of that state, and there received and took possession of the property and effects of the intestate, with which she subsequently removed to this state,

Held, that an action could be sustained against her here on a claim of indebtedness against the estate, which arose from assets received by the intestate in his lifetime as administrator, appointed in California, of the estate of an intestate who also resided there. (The briefs, with the authorities in this case, will be found to be important on this question.)

New York General Term, December, 1860.

Present, SUTHERLAND, P. J., INGRAHAM and BONNEY, J. J. APPEAL from an order overruling demurrers.

THE case, as made by the complaint, is briefly this: In the years 1851 and 1852, John C. Gulick and Richard M. Gulick, were residents of the state of California. That while so residing, John became indebted to Richard, in the sum of $2,300, for money loaned. That after such loan, and in April, 1852, Richard died intestate at California, leaving personal property there. That after the death of Richard, John possessed himself of the property left by Richard, to the amount of $2.000. That in 1855, John died at Honolulu, leaving the defendants, Ellen P. Gulick, (his widow,) and Frances M. Gulick, (who was sued by the name of Millicent F.) his only child. That the defendant Ellen P. was appointed administratrix of the estate of John, in California. That she and her daughter Frances M., at some place beyond the jurisdiction of this court, took possession of John's property to the extent of from $15,000 to $20,000, and that Ellen P. has brought the property so taken into

Gulick agt. Gulick.

this state, and has the same here, and that Frances M. her daughter claims some interest therein.

The complaint also shows, that the plaintiff, in November, 1857, was appointed the administrator of Richard M. Gulick, deceased, by Hon. Alexander W. Bradford, surrogate of the county of New York, and then demands that the defendants account to the plaintiff, and that he be paid the indebtedness of John to plaintiff's intestate, and for the property of plaintiff's intestate, which John took after his death.

Both defendants demurred on the following grounds: 1st. Want of jurisdiction over the cause of action. 2d. Plaintiff has no legal capacity to sue. 3d. There is a defect of parties plaintiff. 4th. There is a defect of parties defendant. 5th. Misjoinder of actions. 6th. Not sufficient facts to constitute a cause of action. The demurrers were over

ruled at special term; and, thereupon, the defendants brought these appeals.

NELSON SMITH, for the appellants.

I. The plaintiff has improperly united in his complaint a cause of action arising on contract with one arising out of a tort. These causes of action could not have been joined before the Code, (Martin agt. The Mayor, 1 Hill, 545; Pell agt. Lovett, 19 Wend., 546,) and cannot now. (Code, § 167.) II. As a suit in equity for an account of administration of the assets of James C. Gulick, deceased, there is a defect of parties.

1. The deceased's personal representative should have been made a party defendant. (Humphrey agt. Humphrey, 3 P. Wm. R., 349.) The California letters of administration to Mrs. Gulick do not help the plaintiff. (Story's Eq. Pl., § 179.) The courts of this state will take no notice of foreign administration. (Doolittle agt. Lewis, 7 John. Ch., 47; Bond agt. Graham, 1 Hare, 482; Vermilyea agt. Beatty, 6 Barb., 431; Vaughan agt. Northrup, 15 Peters, 1.)

Gulick agt. Gulick.

2. The other creditors of the deceased should have been plaintiffs, or the action brought in behalf of the plaintiff, and all such other creditors.

III. The complaint does not state facts sufficient to constitute a cause of action against either defendant, or to give the court jurisdiction.

1. If the action be founded on the statute, as a suit against next of kin, (2 R. S., 451, §§ 23, 24,) the complaint is bad, for that it does not show that any assets had been paid or distributed to the defendants by the administrator of John C. Gulick, deceased.

2. Richard M. Gulick was domiciled in California at the time of his death; that is the place of principal administration of his estate. (Churchill agt. Prescott, 3 Bradf. R., 233; Fay agt. Haven, 3 Met., 114.) The administration on his estate here is ancillary or subordinate to the administration had, or which may be had, in California. (Churchill agt. Prescott, id.) An ancillary administrator, in respect to his right to compel an accounting, is limited to the assets which are in the state at the time of the death of his intestate. He cannot assert any claim to property received by a foreign administrator, although such property had been brought into this state. (Story's Confit. of Laws, §§ 514, 515; Curry agt. Buckam, 1 Dowl. & Ryl., 35; Jauncey agt. Sealey, 1 Vern., 397; Fay agt. Haven, 3 Met., 109.) Neither can a creditor, through the instrumentality of an ancillary administration, compel an account of assets received abroad. (Fay agt. Haven, 3 Met., 114.)

3. The defendant, Ellen P. Gulick, as foreign administratrix, is not suable here. No action can be maintained against any administrator in his official capacity, in the courts of any country except that from which he derives his authority to act, in virtue of the letters of administration granted to him. (Vaughan agt. Northrop, 15 Peters, 1; Bond agt. Graham, 1 Hare, 482; Bell agt. Tyler, 2 Myl. & Cr., 89; Vermilyea agt. Beatty, 6 Barb., 431; Fay agt. Ha