Maas v. German Savings Bank , 71 N.Y.S. 483 ( 1901 )

Delehanty, J.

This action is to recover the amount of a ■deposit made by the plaintiff’s intestate in her lifetime, with the defendant. The trial was had before the court, without a jury, upon a conceded state of facts, which shows the following: - On the 13th day of May, 1896, Frieda Maas opened the account in question, being then a resident of Hudson county, in the State of Eew Jersey, which residence was known to the defendant, and continued to there reside until her death, on Eovember 15, 1898, intestate, leaving her surviving two minor children as her only next of kin. Betters of general guardianship of said minors were issued to the plaintiff by the surrogate of Eew York county on Eovember 23, 1898, and subsequently, and on March 9, 1899, the said surrogate issued to the said plaintiff letters of administration of the goods, chattels and credits of said Frieda Maas, deceased. Eo notice of these respective appointments was given by the plaintiff to the defendant until August 26, 1899. On August 23, 1899, the surrogate of Hudson county, N. J., duly appointed one Frederick Maas as administrator of the goods, chattels and credits of the said decedent, Frieda Maas, and on the same day he duly qualified and presented to the defendant a certified copy of his letters, together with the pass-book issued to the decedent, demanded payment of the balance due thereon, which was thereupon paid him in his representative capacity. Three days later the plaintiff gave the bank notice of his appointment as guardian of the minors and also as administrator, demanded payment of said account, and two days later commenced this action.

It is conceded that the surrogates of New York county and Hudson county had jurisdiction to issue letters of administration as was done. The question before the trial justice, and now before us, is, was the payment to the foreign administrator, under the circumstances, such as discharged the defendant from further obligation in connection with this matter? The learned trial judge has decided adversely to the defendant on that proposition, and from the judgment entered upon his findings this appeal is taken. •

The point involved is novel, as is shown by the sparsity of decisions touching the same. As a general proposition, it is well settled that a foreign administrator of the beneficiary of a fund deposited with a New York bank has power to demand payment of the bank, and, if payment is made, his discharge in his representative capacity would be effectual. Schluter v. Bowery Savings Bank, 117 N. Y. 125, 129, and authorities there cited. But does this rule apply in a case, as here, where there was at that time a domestic administrator? I think not. It is conceded that the plaintiff received his appointment by the surrogate of this county in March, 1899, while the New Jersey administrator was not appointed until the following August. It does not appear, however, that the plaintiff knew of the deposit in question prior to his demand for payment on August 26, 1899, nor is it material to the decision of this appeal. The fact is that when the bank made payment to the foreign administrator, the plaintiff had already been duly authorized by a court of competent jurisdiction in this county to administer the assets of the deceased found therein. The mere fact of the presentment of foreign letters was sufficient, I think, to put the defendant upon inquiry to discover whether bur courts had yet acted in the matter. The duty imposed upon the bank was to exercise ordinary care in making over the deposit. It could have required the foreign administrator, as a condition precedent to payment, to apply for ancillary letters of administration; but when it paid the fund without resorting to those safeguards, it failed in its obligation and continued its liability. Ficken v. Emigrants’ Industrial Sav. Bank, 33 Hisc. Rep. 92.

The appellant contends, however, as is the law, that the jurisdiction of a surrogate over the estate of a nonresident decedent depends upon whether there is property belonging to such estate within his county, and if there is, and not in any other county of the State, his jurisdiction is exclusive, but if there is property in more than one county, the jurisdiction is concurrent (citing Code Civ. Pro., §§. 2476, 2477), and claims that if the mere appointment of an administrator within the State, without notice, was sufficient to put the bank upon inquiry, it would be necessary to examine the records of every surrogate in the State, in order to protect a debtor. This, as he insists, would be a harsh and unjust requirement, with which I agree. No court, under the circumstances, would, in my opinion, compel it; As stated, the bank was only held to ordinary care, which required, in this instance, an inquiry as to whether the surrogate of New York county had acted, he having original jurisdiction of the funds of decedent in question. That caution, if exercised, would have revealed the appointment of plaintiff, as stated.

Recognizing the authority of Stone v. Scripture, 4 Lans. 186, wherein it is held that a foreign administrator cannot discharge a mortgage upon a nonresident’s property within this State, as against a domestic administrator, which I consider controlling herein, and in view of the foregoing, I think the judgment appealed from should be affirmed, with costs.

Fitzsimons, Ch. J., and Schuchman, J., concur.

Judgment affirmed, with costs.