in their representative capacities in this state and has attempted to confer authority to sue them here. That, however, I think is not controlling, inasmuch as the foreign executrix has not attempted to exercise the privilege conferred by said section, and is not here in her representative capacity as executrix. . The object of this action is to establish a claim, not against the executrix individually, but against the estate of which she is the representative, and authorized and required to administer in New Jersey. The point presented by the appellant does not go to the constitutionality of said section 1836a, but rélates rather to the construction thereof; for there may be and often are assets here, and it is conceivable that a foreign executor or administrator might be transacting business here in a representative capacity in such a manner as to subject him in such representative capacity to the service of process here and to the jurisdiction of our courts under said section.

The court at Special Term and counsel for the appellant on the appeal relied on Thorburn v. Gates, 103 Misc. Rep. 292, 171 N. Y. Supp. 198, which was affirmed by this court in 184 App. Div. 443, 171 N. Y. Supp. 568. I am of opinion, however, that the point here presented was not decided in that case, for there it appeared by the complaint that the object of the action was primarily to reach real and personal property of the decedent within this state. That action was first brought in the federal court in the Southern district of New York, and the summons was dismissed on the ground that an action against an executor in his representative capacity is in the nature of an action in rem, and can only be maintained in the jurisdiction where he was appointed, or in a jurisdiction where there are assets of the estate, which are the subjectmatter of, or it is sought to reach in, the action. Thorburn v. Gates, 225 Fed. 613 and 230 Fed. 922. The action was then brought in our Supreme Court, and a motion to dismiss the service was made on the summons and complaint, and it appearing by the complaint that it was a suit in equity to reach assets of the estate within this jurisdiction, it was held that said section 1836a conferred jurisdiction for the maintenance of the action here. In the case at bar, however, it stands uncontroverted that the decedent left no assets within this jurisdiction, and that his executrix has performed no act in her representative capacity here, and was not here in her representative capacity when sued. The only possible theory, therefore, upon which the plaintiff can be permitted to maintain the action here, is to liquidate his claim against the estate of the decedent, and unless a judgment herein will be protected by the Fourteenth Amendment of the federal Constitution with respect to due process and to full faith and credit provision of article 4, § 1, of the federal Constitution, so that it will be enforceable against the estate in the state of New Jersey, there is no propriety in allowing the action to be prosecuted here, and the court should decline jurisdiction. Riverside, etc., Cotton Mills v. Menefee, 237 U. S. 189, 35 Sup. Ct. 579, 59 L. Ed. 910. See, also, Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

The point here presented has not been authoritatively decided by the courts of this state. The only extent to which our decisions have gone

(181 N.Y.S.)

is in holding that an action against a foreign executor or administrator relating to real or personal property here is in the nature of an action in rem, over which our courts have jurisdiction against such a foreign representative of an estate under said section 1836a; and the Court of Appeals, in Holmes v. Camp, 219 N. Y. 359, 114 N. E. 841, expressly refrained from deciding whether jurisdiction beyond this has been lawfully conferred by said section upon the courts of this state. The courts of our state have repeatedly recognized the distinction between the individual and representative character of the individual as an executor or administrator, and have held that the representative character depends for its existence upon, and does not pass beyond, the jurisdiction of its origin. Hopper v. Hopper, 125 N. Y. 400, 26 N. E. 457, 12 L. R. A. 237; Field v. Gibson, 20 Hun, 274; Bostwick v. Carr, 165 App. Div. 55, 151 N. Y. Supp. 74. I am of opinion that this case should be held to fall within the rule applicable to a foreign corporation not doing business here, over which it has been sought to obtain jurisdiction by service on an officer thereof within the state, and in such a case, notwithstanding the fact that jurisdiction over foreign corporations has been conferred by the Legislature by like general language, it is a well-settled rule that no jurisdiction is obtained over the corporation of which the individual served is an officer. Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517; Riverside Mills v. Menefee, supra; see also Grant v. Cananea Consolidated Copper Co., 189 N. Y. 241, 82 N. E. 191; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270, 115 N. E. 711.

Counsel for the respondent also relies on the exercise of jurisdiction. by courts of equity over trustees for the preservation of assets, although the authorities and duties of trustees may have arisen in another jurisdiction, where the assets are distributable. See Reading v. Haggin, 58 Hun, 450, 12 N. Y. Supp. 368; Paget v. Stevens, 143 N. Y. 172, 38 N. E. 273. See, also, Hallenborg v. Greene, 66 App. Div. 590, 73 N. Y. Supp. 403, not cited. But manifestly the theory upon which the jurisdiction is exercised in that class of cases has no application to the case at bar, which is an action at law to recover a judgment for money only, and solely for the benefit of the plaintiff.

I am therefore of opinion that said section 1836a does not authorize the maintenance of this action, and that any judgment recovered herein would not be binding on the defendant in her representative capacity in the state of New Jersey. It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

(190 App. Div. 762)

ACKLEY et al. v. PARSONS et al.

(Supreme Court, Appellate Division, Third Department. March 3, 1920.) 1. VENDOR AND PURCHASER 148-PURCHASERS NOT IN DEFAULT IN ABSENCE OF TENDER.

Where vendors had not tendered performance, and where conduct of purchasers had not amounted to an absolute refusal to perform the contract, which would waive a tender of performance, purchasers were not in default.

2. VENDOR AND PURCHASER 351(2)—MEASURE OF DAMAGES FOR FAILURE TO CONVEY STATED.

Ordinarily the measure of damages for a failure to convey real estate is the difference between the contract price and the value of the property. 3. VENDOR AND PURCHASER 330-ALLOWANCE OF DAMAGES IN ACTION FOR

BREACH OF CONTRACT TO PURCHASE HELD IMPROPER.

In vendors' action for purchasers' breach of contract to purchase land, for which purchaser was to give mortgage, with interest, as part of purchase price, court erred in allowing as damages interest on the mortgage, taxes paid, sums paid attorneys for abstracts and vendors' traveling ex

penses.

Appeal from Trial Term, Broome County.

Action by Griffin S. Ackley and another against Frederick W. Parsons and another. From a judgment for plaintiffs upon a verdict, and from an order denying motion for new trial on the minutes, defendants appeal. Reversed, and new trial granted.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

H. J. Hennessey, of Binghamton, for appellants.

Jenkins, Deyo & Hitchcock, of Binghamton (C. H. Hitchcock, of Binghamton, of counsel), for respondents.

JOHN M. KELLOGG, P. J. By the contract of July 11, 1917, sued upon, the defendants were to purchase certain real estate upon the terms stated therein, the contract to be fulfilled at the convenience of the parties, but within 10 days from that date. This contract, by its terms, superseded a prior agreement between the parties of July 3, 1917. The plaintiffs, in order to show the defendants' breach of the contract, showed that they were ready, at the office of Jenkins, Deyo & Hitchcock, on the 10th day of July, 1917, to perform said contract, and had left the necessary money and papers at said office with said attorneys to carry out said agreement.

[1] The original contract of July 3d had in it a provision that the contract was to be performed at that time and place. No such provision was in the present contract, and the plaintiffs did not, therefore, put the defendants in default, not having tendered performance, and the conduct of the defendants not amounting to an absolute refusal to perform the contract, which would waive a tender of performance.

[2, 3] Ordinarily the measure of damages for a failure to convey real estate is the difference between the contract price and the value of the property. Here the premises were vacant and the purchaser was to

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(181 N.Y.S.)

give a mortgage of $13,000, with interest, as a part of the purchase price. The plaintiffs were allowed to prove as damages the interest on the mortgage, taxes paid, and sums paid attorneys for abstracts and services, and plaintiffs' traveling expenses. The verdict was for $828.50; by deducting therefrom $237.50 on account of interest and the $30 expenses paid, by order of the court it was reduced to $561. An improper measure of damages was adopted, upon which the verdict as it now stands is based. The error in that respect also calls for a reversal. These errors require a reversal of the judgment, and it is unnecessary to consider the remarks made in court and by the court with reference to the alleged forged letter. The judgment and order should be reversed, and a new trial granted, with costs to the appellants to abide the event.

Judgment and order reversed on the law and facts, and new trial granted, with costs to the appellants to abide the event. The court disapproves of the finding that the plaintiffs were ready, willing, and offered to perform the contract, and that the defendants refused performance on their part. All concur.

(111 Misc. Rep. 180)

REZSEK v. SOUTHERN PAC. CO.

(Supreme Court, Appellate Term, First Department.

March 18, 1920.)

1. COURTS ~~97(5) —STATE COURTS BOUND BY FEDERAL DECISIONS AS TO INTERSTATE SHIPMENT.

In actions for damages to interstate shipments, the state courts are bound by the federal decisions in regard to the burden of proof of neglgence, and in regard to whether the negligence of the carrier, if established, constitutes the proximate cause of the damage.

2. CARRIERS 132-SHIPPER MUST SHOW THAT CARRIER'S NEGLIGENCE CONTRIBUTED TO INJURY OCCASIONED BY ACT OF GOD.

In action for damage to goods, carrier, by showing that the loss was occasioned by the act of God, puts burden on shipper of showing that carrier's negligence also contributed to the injury.

3. CARRIERS 119-NOT LIABLE FOR FREEZING OF WINE, WHERE ITS NEGLIGENT DELAY WAS NOT PROXIMATE CAUSE OF LOSS.

Where wine was frozen by reason of an unprecedented fall in the temperature, which carrier could not reasonably have been expected to foresee, not as the result of long exposure, but by reason of its arrival at point of destination while weather was at or below zero, and where it would have sustained the same damage if it had been delivered on time, the railroad was not liable; the damage having been caused by an act of God, and the railroad's negligent delay in shipment not having been a proximate cause contributing thereto.

4. CARRIERS 123-WHEN DELAY IN TRANSPORTATION CONSTITUTES PROXIMATE CAUSE OF DAMAGE.

If goods transported within a reasonable time would ordinarily arrive in good condition, and the additional length of time caused by the negligence of the carrier in itself would cause damage to the goods, the delay in transportation would constitute a proximate cause of the damage. 5. CARRIERS 119-CARRIER NOT LIABLE FOR FREEZING OF WINE AS THE RESULT OF "INEVITABLE ACCIDENT" OR "ACT OF GOD."

If a fall of temperature was so unusual that the carrier could not be expected to have foreseen or guarded against it, the destruction of wine For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

as the result thereof was an inevitable accident or act of God, for which the carrier cannot be held liable, but otherwise where carrier should have foreseen that the wine might be exposed to cold sufficient to freeze it, and should have guarded against this contingency; the destruction of the wine in such case not being due to an act of God, but to the carrier's negligence.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Act of God; Inevitable Accident.]

6. CARRIERS 131-RECOVERY CANNOT BE HAD FOR NEGLIGENCE OTHER THAN THAT PLEADED.

Where shipper's complaint for damage to shipment is based on unreasonable delay in transportation, recovery could not be had on ground of negligence in failing to properly heat car and take necessary precautions against freezing of shipment.

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Frank Rezsek against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

Argued February term, 1920, before LEHMAN, FINCH, and MULLAN, JJ.

Esselstyn & Haughwout, of New York City (J. Ard Haughwout, of New York City, of counsel), for appellant.

Joseph Prager, of New York City (Bernard Rogers, of New York City, of counsel), for respondent.

LEHMAN, J. The plaintiff herein shipped on the 24th day of November, 1917, 61 barrels of wine to New York from Colma, Cal. They were delivered to the plaintiff at New York on the 2d day of January, 1918. The wine was frozen, and as a result eighteen barrels were burst, and the alcoholic content of the wine in these barrels had apparently leaked out, rendering the wine valueless. The plaintiff thereupon brought this action, alleging in his complaint that the defendant unreasonably delayed the transportation of the wine, and as a result of such delay the wine became valueless. It was shown at the trial that wine freezes when the temperature falls to zero or below, and that at the time the wine arrived in New York the temperature ranged for several days from 13° below zero, to 7° below zero, the lowest temperature in New York since accurate records have been kept. There was also proof that ordinarily the freezing of wine does not injure its quality, unless the alcoholic content of the wine, which by such freezing is driven to the center of the frozen mass is permitted to escape from the cask before the whole mass of the wine is melted. [1, 2] The defendant presented some evidence to show that at the time the wine was shipped, owing to war conditions, there was inevitable delay in the transportation of all goods which were not essential to the conduct of the war, and which were not given priority in transportation, and I have grave doubts as to whether this evidence. was not sufficient to show that there was no unreasonable delay in the transportation of the wine; but in my view of the case this question need not be considered, because the delay, even if negligent, is not

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