
    EMIL KANTER, Appellant, v. HENRY M. PEYSER, Impleaded, &c., Respondent.
    
      Decided March 2, 1885.
    
      Foreign executor-—equitable jurisdiction of courts of this state over.
    
    The courts of this state have no equitable jurisdiction over a foreign executor to compel an accounting, and enjoin the withdrawal of assets situate here, when the foreign executor is neither within, nor served with process in the state.
    Even if he be within, or served with process in the state, they have no such jurisdiction except in special cases; suchas when assets in this state are in danger of being lost or squandered before a proper representative can be appointed here to protect them, or a breach of trust, or some unjust and unlawful proceeding, or the like.
    The bare facts that the plaintiff is a residuary legatee, that the foreign executor has not accounted or paid over to him, that certain moneys of the estate in this state arc in the hands of his agent who is about to transmit them to him, and that he has no other property in this state out of which plaintiff’s claim could be satisfied, are insufficient.
    Before Sedgwick, Ch. J., and Truax and O’Gorman, JJ.
    Appeal by plaintiff from order dissolving injunction that had been obtained by plaintiff.
    The complaint was in substance, that the mother of the plaintiff had died in Germany, leaving a last will and testament, of which the defendant Kanter had been made executor, and he had duly qualified in Germany; that the plaintiff was one of the residuary legatees, that part of the estate consisted of certain described moneys ; that the defendant Kanter, executor, &c., had not accounted to the plaintiff for the same ; that another part consisted of certain moneys in the sum of $9,000, “ which is now or will be in the hands of the defendant Peyser as the agent or assignee of said defendant Kanter, in the city of New York, and that said fund is within the jurisdiction of this court; that said defendant Kantér has demanded of said defendant Peyser, the transmission to him to Germany of the unexpended portion of said fund, and that the said defendant Peyser is about to pay or transmit to said Eugene Kanter the said unexpended portion of said fund amounting to about $9,000 ;” that such payment or transmission would work great and irreparable injury to this plaintiff; and it demanded judgment, that the defendants account to plaintiff for the funds or moneys now in their hands in this city, and that defendant Kanter be enjoined from receiving from defendant Peyser, and the defendant Peyser from transmitting or paying to defendant Kanter, the money in Peyser’s hands, or which may come to them.
    An order enjoining defendants as demanded in the complaint, was served upon defendant Peyser, with the summons. Defendant Kanter was in Germany and was not served with any process.
    
      Charles Wehle, for appellant.
    
      Scudder & Carter, attorneys, and George A. Beach, of counsel for respondent,
    argued :—I. The facts show the case to be entirely outside of any claim for the equitable interference of the court (3 Redfield Wills, § 29, Third Ed. ; Beeler v. Dunn, 3 Head, 37 ; McNamara v. Dwyer, 7 Paige, 239 ; Brown v. Brown, 1 Barb. Ch. 187 ; Metcalf v. Clark, 41 Barb. 45; Hurlburt v. Durant, 21 Hun, 481). In Gulick v. Gulick (35 Barb. 92), an action was brought by an administrator appointed in this state, and can be sustained only on that ground. And no case can be found where an executor, a non- resident of the state, has been sued as an executor by a species of attachment of the funds of the estate.
    II. The executor had a right to assign to the defendant Peyser (Parsons v. Lyman, 20 N. Y. 103). No action can be maintained against the defendant Peyser as the agent of the executor (Colum v. Holbrook, 2 N. Y. 126).
   Per Curiam.

The plaintiff is not a creditor of the intestate. As a legatee he has, on the facts stated, no action at law against the defendant Kanter, the foreign executor. He has no interest in the fund so-called, which is very vaguely described in the complaint as a sum of money of about 89,000, “which is or will be in the hands of defendant Henry M. Peyser, as the agent or assignee of said defendant Eugene Kanter, in the city of New York, and that said fund is within the jurisdiction of this court. ” His only interest is his claim to a proper administration of the assets under the will. It is clear that the plaintiff has no equitable cause of action against the foreign executor in personam, in the courts of this state, irrespective of the existence in this state of the assets or a part of them. Our courts have no jurisdiction of foreign executors as such. As an exception to this rule, McNamara v. Dwyer (7 Paige, 239), held that the court of chancery had power to compel a foreign administrator to account for and pay over to the complainants their distributive share of the estate of the decedent, which had been received by him, in his character of administrator in Ireland, and which the defendant had brought into this state. To the exercise of such a power, the actual presence of the foreign administrator within this state was necessary ; for so long as he was without the state, the court recognized that his duty was to administer in the foreign forum, and the court could not, by serving him with process out of the state, create any obligation to the laws of this state. The obhgationkihust exist before the service of process. The endeavor to impound a fund recognized by our law as belonging to the foreign administrator, is an arbitrary act not based upon any principle of law. It is only compelling by force a debtor not to pay what he owes to his creditor at a time when the creditor is under no obligation to the plaintiff to abstain from collecting the debt.

The broader ground taken by the learned counsel for respondent is valid. It is that if the foreign executor had been served here, the case is not one where the court ■will interfere -with the foreign administrator. There are no special circumstances to show that justice to the plaintiff calls for the unusual remedy. In Murray v. Toland (3 Johns. Ch. 577), Chancellor Kent said, The inconvenience of following a man- to his place of residence abroad does not appear to me to be of itself a sufficient ground for departing from the settled doctrines of the court.” Order affirmed, with $10 costs, and disbursements to be taxed.  