Lockwood v. Brantly , 38 N.Y. Sup. Ct. 155 ( 1883 )

Pratt, J.:

This appeal is from an order denying a motion to set aside an order of publication and service of summons and to dismiss the action. The suit is brought against defendant, a foreign administrator, and the Utica Steam Cotton Mills, to recover twelve shares of stock claimed to be the property of the plaintiff and one Cooper. The complaint alleges that this stock stands in the name of defendant’s intestate on the books of the Utica Steam Mills Company, and that defendant refuses to surrender the same. It is, therefore, an action purely to reach tins stock and have it transferred to the name of the true owner. The property is in this State and the action is one in equity to enforce a trust upon, or determine claims in respect thei-eto. Such an action is well brought against a foreign administrator. (Gulick v. Gulick, 33 Barb., 102; McNamara v. Dwyer, 7 Paige, 239 ; Field v. Gibson, 56 How., 232; Brown v. Brown, 1 Barb. Ch. R., 189.) We think the allegation in the complaint bring the case clearly within the rule, that authorizes a suit to be maintained to prevent a failure of justice. The relief sought has no reference to any assets of the estate of which defendant is administrator The object is to compel the Utica corporation to issue stock to the plaintiff in place of certificates now held by defendant as administrator. .

The Utica corporation cannot be impleaded in Maryland, and if this suit cannot be maintained the plaintiff is without adequate' remedy. There is no question concerning wasting of assets or distributing the estate, as the property is alleged not to belong to the estate, but the defendant has come with a quasi possession and claims an interest therein as administrator. The complaint was sufficient in substance and form to meet the requirements of section 439 of the Code of Civil Procedure and, together with the affidavit,, conferred jurisdiction for granting the order. The affidavit positively states that defendant now is, and long has been a resident of the city of Baltimore and that deponent was informed by one Sterling that defendant was there a day or two before the time of making the affidavit. This proof wras sufficient to éstablish the fact that after due diligence the defendant could not be found within the State. Under the authority of Carleton v. Carleton (85 N. Y.,. 313), it is.probable that mere proof that defendant was a resident of the city of Baltimore at the time would not satisfy the provisions of the Code, but the proof here shows that he was actually there at the time. Where a party is shown to be actually at a certain place out of the State, it follows that he cannot, with any amount of diligence, be found within the State. The plaintiff elected to serve the defendant personally without the State, and this was equivalent to publication and deposit in the post-office. -

We think the requirements of the statute have been complied with and that the order appealed from should be affirmed, with costs.

Present — Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.

Order affirmed, with costs.