App. Div.] First Department, March, 1920. appearing or answering it judgment would be taken against the defendant for $25,000, with interest thereon from the 20th of November, 1912, and for costs of the action. On the 6th of August, 1919, the defendant caused to be served on the attorneys for the plaintiff a notice of special appearance, for the purpose only of moving to set aside the service of the summons, and order to show cause why that relief should not be granted, based on the special appearance and on the summons and notice annexed thereto and on her affidavit and an affidavit of the managing attorney for the attorneys appearing specially for her and an affidavit of a member of the bar of New Jersey, returnable on the 8th of August, 1919. The motion was heard on those papers only and denied. The point attempted to be presented by the motion is that the court has no jurisdiction over the defendant who is sued only in a representative capacity as executrix of a decedent who was a resident of Middlesex county, N. J., where he died on the 12th of June, 1917, leaving a last will and testament naming the defendant Mary E. Buckelew his sole executrix and naming her individually his sole legatee and devisee. The will was duly admitted to probate in said county and letters testamentary were there issued to the executrix and she is not and never has been a resident of the State of New York but resided at Washington, D. C., when the service was so made on her. The decedent left no assets in this State and in the probate proceedings in New Jersey the necessary action was taken as required by the laws of that State requiring that all claims against the estate be presented to the executrix and that the time for presenting such claims expired before the delivery of the summons to her and no claim was presented by the plaintiff. The affidavit of the member of the bar of New Jersey shows that there is no statute of New Jersey subjecting an executor or administrator appointed by the courts of that State to a suit in a jurisdiction other than that of the State of New Jersey and that the decisions of the courts of that State recognize and affirm the rule that executors are not subject to compulsory process outside the State of their appointment unless they are qualified and appointed under ancillary proceedings in the jurisdictions in which they are sued; and he cites Babbitt v. Fidelity Trust Co. (70 N. J. Eq. 651) and states that it has not First Department, March, 1920. [Vol. 191. been overruled or modified by any subsequent decision. In that case it was held that the courts of New Jersey were without jurisdiction of an action against executors appointed in Pennsylvania to whom no ancillary letters had been issued in New Jersey, there being no assets of the testator in New Jersey and the executors having performed no acts there and having objected to the jurisdiction; and the rule was broadly announced that with the exception of certain actions for an accounting, the courts of one State cannot acquire jurisdiction by compulsory process against executors or administrators appointed in a foreign jurisdiction in the absence of statutory authority therefor, by which, as I read the decision, is meant authority conferred by the laws of the State in which they are appointed. (See Thorburn v. Gates, 225 Fed. Rep. 613; 230 id. 922.) It was also held in that case and it is well-settled law that letters of administration operate only within the jurisdiction where they are granted, and do not and could not authorize the executors or administrators to collect debts or to recover possession of property in another jurisdiction by actions, suits or other proceedings either at law or in equity unless by the laws of such jurisdiction that is permitted. The only distinction I am able to make between that case and this is that there, the State of New Jersey had not conferred authority on foreign executors to sue in that State or attempted to confer jurisdiction on the courts of that State over foreign executors, whereas by section 1836-a of the Code of Civil Procedure (as added by Laws of 1911, chap. 631) the Legislature of this State has conferred authority upon foreign executors and administrators to sue 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 1836-a but relates rather to the construction thereof, for there may be and often are assets here and it is conceivable that a App Div.] First Department, March, 1920. 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), which was affirmed by this court (184 App. Div. 443). 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 subject-matter of or it is sought to reach in the action. (Thorburn v. Gates, 225 Fed. Rep. 613; 230 id. 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 1836-a 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 section 1 of the Fourteenth Amendment of the Federal Constitution with respect to due process and by the full faith and credit provision of section 1 of article 4 of the Federal Constitution so that it will be enforcible 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 Mills v. Menefee, 237 U. S. 189. See, also, Pennoyer v. Neff, 95 U. S. 714.) The point here presented has not been authoritatively decided First Department, March, 1920. [Vol. 191. by the courts of this State. The only extent to which our decisions have gone 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 1836-a of the Code; and the Court of Appeals in Holmes v. Camp (219 N. Y. 359) 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; Field v. Gibson, 20 Hun, 274; Bostwick v. Carr, 165 App. Div. 55.) 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; Riverside Mills v. Menefee, supra. See, also, Grant v. Cananea Consolidated Copper Co., 189 N. Y. 241; Dollar Co. v. Canadian C. & F. Co., 220 id. 270.) 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; Paget v. Stevens, 143 N. Y. 172. See, also, Hallenborg v. Greene, 66 App. Div. 590, 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 1836-a of the Code does not authorize the maintenance of this action and App. Div.] 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 ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Order affirmed, with ten dollars costs and disbursements. MATERIAL MEN'S MERCANTILE ASSOCIATION, LIMITED, Respondent, v. MATERIAL MEN'S CREDIT AGENCY, INC., and Others, Appellants. First Department, March 5, 1920. Injunction - trade name dissimilarity of names of corporations evidence. 66 The plaintiff was not entitled to an injunction against the defendant restraining it from using or doing business under the name Material Men's Credit Agency, Inc.," where there was no evidence that the stationery or any printed matter of the plaintiff had been imitated, or that any representation had been made by the defendant that the two corporations were identical, or that any one had been deceived into the belief that the defendant and the plaintiff were the same. The plaintiff did not have the exclusive right to the use of the words " Material Men's" for those words are not descriptive of the plaintiff but of a class of business men whom it serves. 66 The words "credit agency are not so similar to the words mercantile association" that when used in connection with the words "Material Men's" they would tend to deceive the public into believing that the plaintiff and the defendant were the same. It was improper to admit in evidence on behalf of the plaintiff envelopes addressed by its customers to it at its correct office address and received by it there, though the name of the plaintiff on the several envelopes was incorrect and variously worded. APPEAL by the defendants, Material Men's Credit Agency, Inc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of August, 1919, upon the decision of the court rendered after a trial at the New York Special Term enjoining the defendants from using or doing business under the name of "Material Men's Credit Agency, Inc." |