
    ROBERT GRAY, Appellant, v. MARY E. RYLE, as Executrix, etc., Respondent.
    
      Decided March 3, 1884.
    
      Foreign executor—jurisdiction over.— Waiver of objection to laclo of jurisdiction.
    
    In an action against a foreign executor where the complaint does not allege nor the proof show, that defendant had brought into this state assets of the estate, the court is without jurisdiction to enforce any liability of the defendant in said capacity. This concerns the power of the court, not the person of the defendant, and therefore the objection is not waived by appearance and an answer on the merits.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiff from judgment, dismissing complaint, entered upon findings at special term.
    
      Action to recover from the defendant, in her representa-. tive capacity, a certain sum alleged to have been dué to the plaintiff from William Ryle in his lifetime by virtue of a contract made between said Ryle and plaintiff. The defendant was charged in the complaint in her capacity as executrix of said Ryle’s estate, by appointment of the surrogate of Passaic county, New Jersey. The complaint contained no allegation as to the existence of assets of the estate in this state. The defendant did not demur, but appeared and answered on the merits.
    At the opening of the trial the counsel for the defendant moved to dismiss the complaint for lack of jurisdiction in the court to adjudicate anything herein against the defendant—the complaint showing that defendant’s representative capacity arises solely by virtue of her appointment as executrix by a foreign court under a foreign probate. The court took the motion under advisement, and subsequently filed the following decision granting the motion :
    Textax, J.—There was no need of the defendant’s taking the objection that the court had no jurisdiction, by answer, because that fact appeared on the face of ‘the complaint. She could have taken that objection by demurrer. This she did not do, but demurs on the trial, and asks that the complaint be dismissed, because it appears on the face thereof that the court has no jurisdiction. But the plaintiff contends that this objection was waived by the appearance and answer of the defendant on the merits. I do not so construe the Code. Section 488 (subd. 1 and 2), provides that the defendant may demur to the complaint when it appears upon its face that the court has no jurisdiction of the person of the defendant, and (2d) that the court has no jurisdiction of the subject of the action. This objection is not waived by a failure to demur (§ 499). There was no need of taking the objection by answer, because it appeared on the face of the complaint (§ 498).
    The complaint must be dismissed, with costs.
    
      
      Christopher Fine, for appellant.
    I. The defendant by appearing in the action, not demurring, but answering on the merits, has waived the objection that the court has not jurisdiction of the person of the defendant (Code Civ. Proc. §§ 488, 498, 499).
    There are two kinds of jurisdiction, one as to the person (which may be waived), another as to the subject-matter (which cannot be waived). It will not be pretended that this court does not have jurisdiction of the subject-matter of the action; the defendants’ only contention is that the “ court does not have jurisdiction of the person of the defendant,” because the defendant is a foreign executor. The defendant having answered on the merits, and neither demurred or answered that the court had no jurisdiction of the person, has waived that objection and is now estopped from raising it (McCormick v. Penn. R. R. Co., 49 N. Y. 303 ; Spyer v. Fisher, 37 Id. 94; Dart v. Farmers’ Bank, 27 Barb. 337; Hovey v. McDonald, 4 N. Y. 606 ; Eitel v. Bracken, 38 Super. Ct. 7).
    II. This court may maintain a bill in equity against a nonresident or foreign executor, even when a common law action could not be maintained—that is, may have jurisdiction of the subject matter without reference to the question of the waiver by the non-resident executor of the question of the jurisdiction of the person (Garlick v. Garlick, 33 Barb. 92; Campbell v. Tousey, 7 Cow. 64; McNamara v. Dwyer, 7 Paige, 236, 241; Slater v. Carrall, 2 Sandf. 573).
    
      Preston Stevenson, for respondent.
    I. The rule is well settled that the courts of any state foreign to the jurisdiction which appointed an executor or administrator, have no jurisdiction of actions by or against him in his representative capacity merely (Vaugn v. Northrop, 15 Peters, 1; Kerr v. Moon, 9 Wheat. 565 ; Vermilyea v. Beatty, 6 Barb. 429 ; Metcalf v. Clarke, 41 Id. 45 ; Field v. Gibson, 56 How. 232; aff’d l0 Hun, 274; Matter of Webb, 11 Hun, 124; Story's Conflict Laws, § 513, et seq.). Where, however, an obligation, or quasi obligation, to domestic creditors arises from the personal acts of a foreign executor within the jurisdiction—e. g., his bringing assets within the jurisdiction, by misappropriation or otherwise, in a manner prejudicial to the interests of persons resident there who are interested in the proper administration of the estate—a court of equity will take jurisdiction of an action against him to compel him to discharge his trust—i. e., by requiring him to administer the assets within the jurisdiction in accordance with the law of the state of his appointment (McNamara v. Dwyer, 7 Paige, 239 ; Gulick v. Gulick, 33 Barb. 92 ; Montalvan v. Clover, 32 Barb. 196 ; Campbell v. Tousey, 7 Cow. 64).
    II. But the plaintiff claims that the defendant has waived the jurisdictional objection just argued by answering to the merits of the action. His theory is that the objection goes to the jurisdiction of the court over the person of the defendant, and that such objection can be waived notwithstanding the express language of the statute (Code, § 499). We submit that neither ground of plaintiff’s contention is valid, a. The objection is not to the jurisdiction of the person of the defendant, but to the jurisdiction over the subject-matter of the action, and of course the latter objection is never waived, even wrere there no statute provision in regard to it. b. But further, if it be admitted that defendant’s objection must be deemed one to the jurisdiction of the person, it cannot help the plaintiff in this action. The statute (Code, § 499) expressly says that “ the objection to the jurisdiction” is never waived. The objection that the court has no jurisdiction of defendant’s person which is recognized as a ground of demurrer by the Code is very different from that arising by reason of a defective or even an absence of service of process, which can be availed of only on motion, and which is waived by appearance and answer without objection. The former objection is one that goes to the power of the court to adjudicate as truly as does the objection of a want of jurisdiction over subject-matter, and in principle, therefore, it cannot be distinguished from it. The objection that may be taken by demurrer is not that the defendant was not properly brought within the jurisdiction by due service of process, but that,' in the nature of the case, the court cannot take jurisdiction of his person. Such objection therefore can no more be waived by appearance and answer than can that to the jurisdiction of the subject-matter (Nones v. Hope Mutual Life Co., 5 How. 96; Valarino v. Thompson, 7 N. Y. 576).
   Per Curiam.

This was an action against a foreign executrix. The plaintiff did not allege nor was there proof that the defendant had brought into this state, assets of the' estate. This court was without jurisdiction to enforce any liability of the defendant, as executrix. This concerned the power of the court and not the person of the defendant.

Judgment affirmed, with costs.  