
    The German-American Coffee Company, Respondent, v. William F. Johnston, Appellant. (Action No. 1.)
    First Department,
    June 4, 1915.
    Corporations — action against a non-resident for alleged illegal declaration of dividends — survival of action — service of supplemental summons by publication.
    An action to recover damages for the alleged illegal declaration of dividends of a Few Jersey corporation, contrary to the Stock Corporation Law of Few York and the General Corporation Law of Few Jersey,
    
      brought against a resident of the State of Iowa, who was personally served and appeared in the action but died before the issue raised by a demurrer to the complaint was decided, survives, and may be continued against the defendant’s administrators.
    But a supplemental summons may not be served by publication or at the option of the plaintiff, personally, without the State. This, because neither the defendant at the time of his death nor the administrators at the time of the service owned property in this State, and the court would not be authorized to render a personal judgment against them.
    Appeal by Anna B. Johnston and another, as administrators, etc., of William F. Johnston, appearing specially for that purpose, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1915, continuing an action against non-resident administrators and directing the service of a supplemental summons and complaint upon them by publication or personally without the State.
    
      William Ferguson, for the appellant.
    
      Edward S. Paine, for the respondent.
   McLaughlin, J.:

Action to recover damages for the alleged illegal declaration of dividends of a New Jersey corporation contrary to sections 28 and 70 of the New York Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61), and section 30 of the New Jersey General Corporation Law (Laws of 1896, chap. 185, as amd. by Laws of 1904, chap. 143; 2 Comp. Stat. N. J. 1617, § 30).

The defendant, a resident of the State of Iowa, was personally served with a copy of the summons in this State and appeared in the action. He interposed a demurrer to 'the complaint, but died before the issue raised thereby was decided. After his death the plaintiff moved, by an order to show cause, which was personally served upon Johnston’s administrators without the State, that the action be continued against them and that a supplemental summons be served upon them by publication or personally without the State. Upon the return of the order the administrators appeared specially for the purpose of objecting to the jurisdiction of the court. The motion was granted and they appeal.

Two questions are presented by the appeal, (1) whether the cause of action survives; and, (2) if so, whether a supplemental summons can be served in the manner directed. The action, as stated, is to recover damages for illegal declaration of dividends contrary to the statutes of the States of New York and New Jersey.

I am of the opinion that the cause of action survives. Section 120 of the Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], added by Laws of 1909, chap. 240) provides that For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts.”

I have been unable to find any authority in this State which definitely settles whether an action of this character is, in its nature, contractual or in tort. But it is unnecessary to determine that question, because in either case the cause of action survives. That a cause of action for the breach of a contract, whether express or implied, survives the death of the defendant, is so thoroughly settled that the citation of authorities is unnecessary. (But see Holsman v. St. John, 90 N. Y. 461.)

If the illegal declaration of a dividend be considered in the nature of a tort, then the liability comes within the clear meaning of the section of the Decedent Estate Law above quoted, and the action survives. This must follow, because the illegal declaration of a dividend is a wrong “ done to the property, rights or interests of another ” within the meaning of the statute. This is recognized by the fact that both the New York and New Jersey statutes permit a recovery for the amount of the loss sustained. (New York Stock Corp. Law, §§ 28, 70; New Jersey Gen. Corp. Law, § 30.)

In Mayer v. Ertheiler (144 App. Div. 158) this court held that a cause of action for fraud and deceit survived. Justice Miller, who delivered the opinion, referring to the section of the Decedent Estate Law above referred to, said: That section seems too plain for construction. * * * It has been squarely decided by this court, in this and the Second Department, that the test of survivorship is whether the injury is to pecuniary interests and that it is immaterial whether the wrongdoer profited by the wrong.”

The cause of action having survived the death of the defendant, the plaintiff had a clear legal right to have the action continued against his administrators. (Code Civ. Proc. §§ J5J, 1836a.) The former section provides that in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon motion, allow or compel the action to he continued by or against his representatives or successors in interest. The latter section provides that an executor or administrator duly appointed in any other State may sue or be sued in any court in this State in his capacity of executor or administrator in like manner and under like restrictions as a non-resident may sue or he sued. (See Provost v. International Giant Safety Coaster Co., 152 App. Div. 83; affd. on opinion of App. Div., 208 N. Y. 635.)

If the foregoing views be correct, then it follows that so much of the order as continued the action against defendant’s administrators is right and should be affirmed.

But I am of the opinion that the order, in so far as it directs the service of a supplemental summons by publication, or at the option of the plaintiff personally without the State, is erroneous. I have been unable to find any authority which permits service to be thus made, or which would authorize the court, in case of the non-appearance in the action of the administrators, to enter a personal judgment against them. The defendant, at the time of his death, had no property in the State of New York. His administrators have no property in such State and the court would not be authorized to render a personal judgment against them. The rule is well settled that to entitle a plaintiff to an order directing the service of a summons by publication, where a money judgment is demanded, there must he property within the State and unless there is the court does not obtain jurisdiction to render

a personal judgment. (Code Civ. Proc. §§ 707,1217; Haase v. Michigan Steel Boat Co., 148 App. Div. 299.) An action brought against a non-resident, where substituted service is made, is in the nature of an action in rem. (Pennoyer v. Neff, 95 U. S. 714; Haase v. Michigan Steel Boat Co., supra; Chesley v. Morton, 9 App. Div. 461.) If there be no res within the State, there is nothing upon which the court can exercise its jurisdiction. Indeed, a judgment cannot be entered unless there is property here. Jurisdiction to enter a personal judgment cannot be obtained by substituted service. This was recognized by this court in Logan v. Greenwich Trust Co. (144 App. Div. 372; affd. on opinion of App. Div., 203 N. Y. 611). There an action was commenced against a non-resident and property attached. The non-resident then died and the court held that the lien acquired by attachment against his property continued and that an order substituting a foreign administrator was proper because of the lien which had been thereby obtained. But Presiding Justice Ingraham, who delivered the opinion of the court, took occasion to point out that if the administrators did not appear in the action the only relief which could be obtained would be against the property attached. He said: “No obligation exists upon the defendant to appear, and the only result could be that the plaintiff’s lien acquired by virtue of the levy under the warrant of attachment would be enforced.” (See, also, Brown v. Fletcher’s Estate, 146 Mich. 401; affd., 210 U. S. 82.)

The order appealed from, therefore, should be modified by striking therefrom the provision permitting the service of the supplemental summons by publication, or at the option of the plaintiff, personally without the State, and as thus modified affirmed, with ten dollars costs and disbursements to the appellant.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice.  