
    Mary Fiske Paget et al., Resp’ts, v. Charles G. Stevens, as Trustee, etc., App’lt, et al.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    1. Jurisdiction—Trustee—Non-resident.
    The court of common pleas for the city and county of New York has jurisdiction of an action brouglit.by a resident of the city of New York, against a non-resident of the state to remove him from the office of testamentary trustee, and to make an order for substituted service by publication, when real estate, subject to the trust, is situated in said city.
    
      2. Same.
    In such a case, the cause of action, being the detriment to the trust prop- ' erty, arose in the city of New York where part of the real property is situated.
    3. Same.
    Where one of the plaintiffs is a resident of the city of New York and the other a non-resident, having a common but not a joint interest, the action is one brought by a resident of the city.
    Appeal from an order of the special term denying the motion of the defendant Charles Gr. Stevens to vacate an order for publication of the summons against him.
    Burrill, Zabriskie & Burrill (George Zabrislcie, of counsel), for app’lt; Iloadley, Lauterbach & Johnson (George Hoadley and John Vernon Bouvier Jr., of counsel), for resp’ts.
   Daly, C. J.

The action was brought to remove the defendant Charles Gr. Stevens from his office as trustee under the will of Paran Stevens, deceased, which was admitted to probate by the surrogate of New York county on May 81st, 1872. The deceased died seized of valuable real estate in three states, namely, New York, Massachusetts and Ehode Island, in the cities of New York, Boston and Newport respectively ; and that which is situated in the city of New York is subject to certain trusts created by the will; one equal third part of the estate being devised to the widow Marietta E. Stevens, to Charles Gr. Stevens and to John L. Melcher, in trust for the testator’s daughter Mary F. Stevens, now Mary F. Paget. Marietta E. Stevens and Mary F. Paget are the plaintiffs herein and Charles Gr. Stevens and John L. Melcher aré defendants. Mrs. Stevens is a resident of the city of New York. Mrs. Paget resides in England and John L. Stevens is a resident of Boston, Mass. The last named defendant questions the jurisdiction of the court in this action, and its power to order substituted service of the summons upon him by publication. If the contention of the defendant be correct then it would seem that the courts of this state are powerless to interfere for the protection of the trust estate, which includes a large body of real property within their jurisdiction, so long as any of the trustees remain out of the state, so that personal service therein of the summons in an action cannot be made upon such non-resident. And it would also seem that so long as the trustees reside in different states it would be impossible to find any court having jurisdiction to reach them no matter what interference might be necessary for the enforcement of the trust and the protection of the interests of the beneficiaries. With respect, however, to this state, we believe that its laws have provided against such a signal failure of justice, and that the situation of a part of the trust property within its borders, confers upon its courts jurisdiction of any action based upon the conduct of a trustee in the performance of his duties ; and with respect to the court of common pleas for the city and county of New York, the situation of the real property, which is the subject of the trust, within that city gives it the same jurisdiction. The superior city courts of this state have jurisdiction of any action to procure a judgment determining, annulling, or otherwise affecting, an, estate, title or other interest in real property which is situated within the city where the court is located; and to an action for any other cause where the cause of action arose within that city; and to an action for any cause brought by* a resident of the city wherein the court is located, against a natural person who is not a resident of the state. Code, § 263, subd. 1, 2, 6. If the plaintiff succeed in this action and Charles Gr. Stevens is removed as trustee, the estate devised to him by the testator as one of the trustees under the will, is determined, or ended, and he will be divested of his title thereto; so that the case is brought directly within the provisions of the Code as one in which a judgment is sought which determines, or otherwise affects, an estate, title or interest in real property; and this is not a mere result or consequence of the judgment, but is the very object of the action. The cause of action arose in New York City, the trust property being there situated. The cause of action, which must not be confounded with the object of the action, and which is the detriment to the trust property which may ensue from the breach of the trustee’s duty, arises "where the property affected is .situated. The subject of the action is the trust property and the subject or cause of action is its preservation and management. Garner v. Thorn, 56 How. Pr. 452. It is not necessary in order to confer jurisdiction, that. all the trust property should be within the particular city or state, for if that were so then it might result that no court would interfere to control a trustee where the trust property was situated in different jurisdictions. The test of jurisdiction is: Can the judgment be enforced in this state ? That it can be, where the judgment removes the trustee from the present or future control of trust property within the state, there is no doubt. Tested by the reasoning in Bryan v. University Pub. Co. 112 N. Y. 387 ; 21 St. Rep. 21, our courts hav,e jurisdiction of the action ; for the judgment would not be one which “ would operate on nothing in the state and be regarded by nobody out of it." As I understand the argument in that case, if the wrongful acts of the trustee were committed in Massachusetts, but the property affected by them is in this state, the courts here would have jurisdiction of the subject of the action. In that view this cannot be regarded in any sense as a personal action against Charles G-. Stevens; for although his acts are urged as ground for relief, the relief demanded is not a money judgment as in McKinney v. Collins, 88 N. Y. 216, nor affecting a personal relation as in Jones v. Jones, 108 N. Y. 424; 13 St. Rep. 838; but affecting the management, control and disposition as well as title and estate of real property within the jurisdiction. - The cases which it is assumed hold a contrary view, differ in character from that before us. They concern chiefly the construction of a section of the Code relating to the place of trial of actions of the character specified in § 263, (Code, § 982); and it was held that an action to ,compel the cancellation of a satisfaction piece of a judgment, did not affect a lien upon real estate in a particular county, because the judgment affected the real and -personal property of the judgment debtor generally; Knickerbocker L. Ins. Co. v. Clark, 22 Hun, 506; also that an action to compel the assignment of a mortgage was not of that character because the mortagage continued to be a lien upon the property no matter to whom it was transferred, Yates Co. Nat Bank v. Blake, 43 Hun, 162 ; 5 St. Rep. 486; and so with regard to an action merely to recover the money due upon town bonds although they were a lien upon real property in the county, Becker v. Town of Cherry Creek, 70 Hun, 6; 53 St. Rep. 555. In Gibson v. American Loan & Trust Co., 58 Hun, 446 ; 35 St. Rep. 192, it was held that the court had jurisdiction of an action to remove a trustee who resided, and was served with process, within the state, the trust property was situated in another state; but this decision in no wise questioned the right of the tribunals where the property was situated to entertain an action for the same purpose. The special jurisdiction ■of the court of common pleas, as a superior city court, also attaches by reason of the residence of the plaintiff, Mrs. Stevens in the city of New York, Code, § 263, subd. 6, above. The fact that Mrs. Paget, the cestui que trust, who is a non-resident, is joined with her, does not oust the court of jurisdiction acquired by the fact of her residence in the city. The two plaintiffs are not jointly interested. Their interest is common but not joint; and Mrs. Paget is not a necessary party plaintiff. She might have been made a defendant; and if she voluntarily appeared and substituted her rights she would have given the court jurisdiction. The fact that she voluntarily comes in as plaintiff in company with a resident plaintiff cannot have a contrary effect and go even further to destroy the jurisdiction which the court acquires by reason of the co-plaintiff’s residence. The court having jurisdiction of the ■cause of action as appears from the papers (Code, § 435) an order of publication was properly granted, the proof showing that the defendant to be served was a non-resident of the state and that a cause of action exists affecting the title to real property within the •state, Code, § 438, subd. 1, 5; and the special term properly denied the motion of the defendant to vacate the order of publication. Order appealed from affirmed, with costs and disbursements. Gtegerich, J., concurs.

Pryor, J.

(Dissenting).-In an action to remove defendant from the position of testamentary trustee of local and foreign property under a domestic will, an order for service of summons upon him by publication, was issued on the ground of his non-residence. The appeal is from the denial of a motion to vacate that order. Conceding that unless the court has jurisdiction of the subject of the action the order cannot stand, Bryan v. University Pub. Co., 112 N. Y. 382, 386; 21 St. Rep. 21, the learned Judge at special term asserted cognizance of the cause as “affecting an estate, right, title, lien or other interest in real property,” situate within the city of New York. Code of Civ. Pro. § 263, sub. 1. As I conceive it such is not the case. The subject of the action is the duty of defendant as trustee, and the cause of action is the breach of that duty. McKinney v. Collins, 88 N. Y. 216, 221. Hence, the action is not local but transitory. Marshall, C. J., in Massie v. Watts, 6 Crunch, 148, 158. The sole issue in controversy is the personal fitness of defendant to discharge the trust. If he be fit he will be retained; if unfit he will be removed. Bat ■ whether he be retained or removed, the estate of which he is trustee will be equally and alike unaffected as to right, title and interest. Upon the trial no question can be raised as to such right, title or interest; and no judgment can be pronounced upon such right, title or interest. True, judgment of removal "would require him to convey to his successor; still such judgment would not, in the sense of the statute, affect the estate but only change the person in whom the title should reside. Knickerbocker L. Ins. Co. v. Clark, 22 Hun, 506; Yates Co. Nat. Bank v. Blake, 43 Hun, 162 ; 5 St. Rep. 486 ; Becker v. Town of Cherry Creek, 70 Hun, 6; 53 St. Rep. 555; Gibson v. American L. & T. Co., 58 Hun, 443, 447; 35 St. Rep. 192; Remer v. McKay, 54 Fed. Rep. 432 ; 35 id. 88. Neither can jurisdiction for this court be claimed on the ground that the cause of action arose in the city of New York. Code, § 263, subd. 2. The cause of action is the violation of his trust by the defendant; and that violation is alleged to be his hostile attitude towards his co-trustee, resident in New York, while he resides in Massachusetts and part of the trust property is there situate. - Obviously, the animosity against the co-trustee imputed to him, and the manifestation of that ill-feeling, must be in the pla'ce of his personal presence, Massachusetts. Nor yet has the court jurisdiction because the action is by a resident of the city against a non-resident. Code, § 263, subd. 6. One of the plaintiffs is a resident of England and the joinder of that party necessarily defeats jurisdiction. An action by a resident and non-resident jointly, is not the action by a resident simply, of which the Code gives jurisdiction. Walsh v. R. R. Co., 6 Fed. Rep. 797. Mindful of the principle on which substituted service of summons on residents proceeds, I cannot hesitate to declare the case not to be within the policy and purview of the statutory provisions. “ Substituted service by publication, or in any other authorized form, may be sufficient to apprise parties of the object of proceedings where property is once brought under the control of the court by seizure or some equivalent act. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it to a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose.” Pennoyer v. Neff, 95 U. S. 714, 727; Jones v. Jones, 108 N. Y. 415, 424; 13 St. Rep. 838; McKinney v. Collins, 88 N. Y. 216, 224. Here, indisputably, the action is in personam, to determine the right of defendant to continue as trustee, and to exercise the privileges and enjoy the profits of the position. The relation of trustee “is not a res within the state of the party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind thq absent party, a citizen of another jurisdiction, by substituted service or actual notice of the proceeding given without the jurisdiction of the court where the proceeding is pending.” Jones v. Jones, 108 N. Y. 424; 13 St. Rep. 838. The conclusion is, that the court was without power to make the ofder of publication. Order denying motion to vacate order should be reversed, and order of publication vacated and set aside; with costs and disbursements.  