
    Julio F. Sorzano and Edward J. H. Tamsen, as Sheriff, etc., Plaintiffs, v. Frederic R. Coudert et al., Defendants.
    (Supreme Court, New York Trial Term,
    August, 1899.)
    Attachment — Sheriff’s action in aid — Interest of debtor ' undetermined and determinable only by foreign law.
    A sheriff will not be permitted, jointly with a creditor of Louis Pons, to maintain an action in aid of an unsatisfied attachment levied upon the “ undivided interest” of said Louis Pons “in all the personal property within the State of New York formerly ” of his father and alleged to have been and to be in the hands of the ancillary administrator of the said father, where the extent of the interest of the said Louis Pons therein is undetermined and depends for its ultimate determination upon the action of the courts of Prance.
    Action brought by the sheriff of Eew York, in conjunction with the plaintiff in an attachment suit, as permitted by section 677, Code Civ. Pro., in aid of an attachment issued against the property of Louis Pons. The attachment was served upon the administrator of the goods, chattels, etc., of Jean Fernand Auguste Pons and upon the firm of Coudert Brothers, who had been the attorneys for Pons in his lifetime. The complaint alleged that, at the time of the service of the attachment, Louis Pons was seized of “ <m undivided interest in all the personal property within the State of Eew York formerly of the said Jean Fernand Auguste Pons.” It further alleged, that, in the attachment suit, judgment was entered in favor of the plaintiff against the said Louis Pons, prior to the beginning of the present action, to-wit, on the 9th of September, 1897, and that execution was issued thereon and returned wholly unsatisfied. It was not alleged that the administration of the estate was closed, or that a competent court had Equidated the “undivided interest,” or that.any.decree of distribution had been made.
    . Judgment was demanded against the deféndants for $6,981.81 "with interest from the 9th of September, 1897.
    Eugene G. Kremer, for plaintiffs.
    Coudert Brothers (E. R. Coudert, Jr., and John P. Murray, of counsel), for defendants.
   Leventritt, J.

■ After a careful consideration of this case, and taking the view most favorable to the plaintiffs, by ignoring the several serious objections urged to the right of the plaintiffs to maintain this action, I am satisfied that the defendants are entitled to judgment on the merits.

A judgment in favor of the plaintiffs would, in effect, direct administration upon the local assets of the estate of Louis Pons’ father. While that direction is discretionary (1 Williams Exrs., 443, note; Lynes v. Coley, 1 Redf. 405; Matter of Hughes, 95 N. Y. 55, 60), the circumstances of this cáse do not warrant it. The aid of the court is not invoked by a creditor of the decedent, but by a creditor of one interested in the distribution of the estate. There is no evidence of proceedings to fix the share, if any, of Louis Pons in the estate of his father. The extent of his ultimate interest can be determined only by the judicial tribunals of France. While it is true that the ancillary, administrator in this State has property of the decedent, apparently clear of debts, in amount more than sufficient to cover the plaintiffs’ claim against Louis Pons, provided the latter shall establish his right .to the one-third or one-fourth which he claims, it is not possible to determine reliably in advance how far hi's share may be diminished upon the accounting required and regulated by the French Civil Code. By its provisions, the amounts of advances must be deducted from the distributive share. There is no proof before me on the subject of advances. For aught that appears, Louis Pons’ share may be entirely consumed. Even were this a proper case, the court is not in a position to apply the law of the domicile. Substantially the same questions as here presented were before the Appellate Division on an appeal from an order of the surrogate, denying the plaintiffs’ petition for an accounting by the ancillary administrator. In the Matter of Dunn, 39 App. Div. 510. It was the sense of the court that inasmuch as the final settlement of the estate depended on the ascertainment of facts affecting the right of Louis Pons to the whole or a part of a share in his father’s property, the adjustment or final settlement of the estate would have to be made in France.

This disposition of the case need work no hardship to the plaintiffs; it does not defeat, merely defers, the enforcement of their rights.

In my determination of the issues, I have regarded the pleadings as amended, with reference to the return of the execution, and I have excluded the papers on appeal from the surrogate’s order.

I direct judgment in favor of the defendants. The plaintiffs may have sixty days’ stay and sixty days to make a case.

Judgment for defendants.  