
    SCHARMANN v. SCHOELL et al.
    (Supreme Court, Appellate Division, First Department.
    December 10, 1897.)
    1. Action—Executor’s Bond—Compbaint^-Liability, of Sureties.
    In an action by the sole creditor of a decedent against the sureties on the bond of the administratrix, the complaint alleged thé giving' of the bondr and its. condition; that she received all the-property of the'éstate,- and con-" verted.it wholly,to her own use; that plaintiff procured judgment against her, as administratrix, for his claim, which remains unpaid; and that sh?, had either removed from the state, and remained heyond the jurisdiction, or kept herself condealed "therein so ’that1 plaintiff is unable to obtáin juris-diction over her to compel her -to account. Held, that the complaint-stated facts sufficient to constitute a cause -of- action, - and that the court had. jurisdiction thereof,; though the default of fhe administratrix- has not "been estab-. iished before "the" surrogate. "" .......,
    2., Same—Parties.
    
      Where an administratrix has converted the property of an estate to her -own use, and hasleft the State, or concealed hersfelf so that service of:process = cannot be effected, -itis.unnecessary, in an actiofi against ¡the. sureties on her-bond;.fo.join her- as a party, and sery(e a.summons on her.by substituted. serviced ‘ ( _
    Patterson, dissenting.
    Appealfrom special term.
    Action by Julius 'Scharmann against Frederick Schoell and others. ; From a 'judgment sustaining a demurrer to the 'complaint ón thé ground of a défect of pártiés, plaintiff appeals.
    Reversed.,
    Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    Howard A. Sperry, for appellant.
    Otto H. Droage, for respondents.,
   INGRAHAM, J,

The. action, is*brought .to recover upon a -bond, given upon the appointment of one Sophia Froschle as administratrix of Gustave Froschle, deceased. The plaintiff is a creditor of-, the .said deceased;... The complaint alleges the death of the. depedent, the; appointment of the administratrix,, and the giving of. the. bond, which was .conditioned: “that, if the ;above-bounden Sophia-.Froschleshall faithfully, execute the .trust reposed in .her as: administratrix of, , all and singular, the goods, chattels, and credits of Gustave Froschle, late of the city of New York, deceased,; and obey all; lawful: decrees and orders of,the surrogate’s court of the,¡city,and- county:¡of New, York touching- the administration of the,,estate committed .to hei> then, this: obligation, shall h© void,- else, to, remain in full force and virtue,’.’, which ¡said bond was joint,and several, in form, and, in terms, bound.,the legal representatives ;of the several parties thereto... The complaint further alleges “that since her appointment as aforesaid the said Sophia Froschle, as administratrix The. action, is*brought .to recover upon a -bond, given upon the appointment of one Sophia Froschle as administratrix of Gustave Froschle, deceased. The plaintiff is a creditor of-, the .said deceased;... The complaint alleges the death of the. depedent, the; appointment of the administratrix,, and the giving of. the. bond, which was .conditioned: “that, if the ;above-bounden Sophia-.Froschleshall faithfully, execute the .trust reposed in .her as: administratrix of, , all and singular, the goods, chattels, and credits of Gustave Froschle, late of the city of New York, deceased,; and obey all; lawful: decrees and orders of,the surrogate’s court of the,¡city,and- county:¡of New, York touching- the administration of the,,estate committed .to hei> then, this: obligation, shall h© void,- else, to, remain in full force and virtue,’.’, which ¡said bond was joint,and several, in form, and, in terms, bound.,the legal representatives ;of the several parties thereto... The complaint further alleges “that since her appointment as aforesaid the said Sophia Froschle, as administratrix as aforesaid, ■ has' received from the several banks heretofore specified the amounts of money therein deposited, and has entered into possession of the real estate heretofore specified, belonging to the deceased”; that the said deceased owed no debts, except to this plaintiff’s assignor, at the time of his decease; that, after having so received the said moiieys as aforesaid, the said Sophia Froschle did pot faithfully administer the same, nor pay the debts of the said Gustave Froschle, deceased, nor distribute the sam,e to the next,of kin of, the said deceased, nor invest the same, or any part thereof, but converted the same wholly to her own use, whereby .the said bond was forfeited; that this plaintiff recovered a' judgment against the said Sophia Froschle, as administratrix aforesaid, for the said debt- of the said. Gustave Froschle, deceased,. for the sum of $2,020.50, no part of which has been paid;, “that after so disposing of the property ,bf the said estate, and converting the sainé to her own use, the said,Sophia Froschle either removed from this, state, and remains beyond the jurisdiction of its courts, .or keeps herself concealed therein, so , that the plaintiff is unable, bv diligence of reasonable effect, to serve upon her process-issuing out .of, tire courtp of this , state,, ór in anyothefc way get jurisdiction over the said Sophia Froschle for the purpose ,of compelling her to account as such”; that the said Sophia Froschle did, nothing whatever regarding the said estate, except to collect, the moneys due to -the said Gustave Froschle, and to convert the said property into caph; that she, failed to, file at any tipie with the surrogate’s court any ipventpry, ¡repopt óf her ‘proceedings "as such -administratrix,, or account as such, nor wás ,apy pccopnting pver hhd .of her ; acts "as such administratrix; and .'that the said Gustave Froschle, left, hiip surviving," the sa,id -Sophia' Froschle, his widow, but no next pf kin or heirs at law. And the plaintiff asks for judgment that an account of‘the administrationof Sophia .Eroschle, as administratrix of the estate of the said Gustave Frosclile, deceased, be taken, and that , whatever sum the said Gustave Froschle or his estate would have been liable .toip,ay to, the,plaintiff,.,the sureties .on thé bond he adjudged to pay,- and that any or all of the creditors or next pf kin or representatives, of deceased, next of kin or creditors, be allowed, fo come in and claim their respective distributive shares of whatever may be recovered in jheir behalf. The defendants admit the allegations of the complaint,'by their demurrer, hut allege as a ground of their demurrer that the court had not jurisdiction of the subject, of .the action; that there is a defect of parties defendant, in that Sóphia'Fró.schíe, the administratrix of Gustave Froschle, decéásed, was not made.a party defendant to the,action; and that the complaint does not state facts¡ sufficient to constitute .a cause' óf ac; tion.as aforesaid, ■ has' received from the several banks heretofore specified the amounts of money therein deposited, and has entered into possession of the real estate heretofore specified, belonging to the deceased”; that the said deceased owed no debts, except to this plaintiff’s assignor, at the time of his decease; that, after having so received the said moiieys as aforesaid, the said Sophia Froschle did pot faithfully administer the same, nor pay the debts of the said Gustave Froschle, deceased, nor distribute the sam,e to the next,of kin of, the said deceased, nor invest the same, or any part thereof, but converted the same wholly to her own use, whereby .the said bond was forfeited; that this plaintiff recovered a' judgment against the said Sophia Froschle, as administratrix aforesaid, for the said debt- of the said. Gustave Froschle, deceased,. for the sum of $2,020.50, no part of which has been paid;, “that after so disposing of the property ,bf the said estate, and converting the sainé to her own use, the said,Sophia Froschle either removed from this, state, and remains beyond the jurisdiction of its courts, .or keeps herself concealed therein, so , that the plaintiff is unable, bv diligence of reasonable effect, to serve upon her process-issuing out .of, tire courtp of this , state,, ór in anyothefc way get jurisdiction over the said Sophia Froschle for the purpose ,of compelling her to account as such”; that the said Sophia Froschle did, nothing whatever regarding the said estate, except to collect, the moneys due to -the said Gustave Froschle, and to convert the said property into caph; that she, failed to, file at any tipie with the surrogate’s court any ipventpry, ¡repopt óf her ‘proceedings "as such -administratrix,, or account as such, nor wás ,apy pccopnting pver hhd .of her ; acts "as such administratrix; and .'that the said Gustave Froschle, left, hiip surviving," the sa,id -Sophia' Froschle, his widow, but no next pf kin or heirs at law. And the plaintiff asks for judgment that an account of‘the administrationof Sophia .Eroschle, as administratrix of the estate of the said Gustave Frosclile, deceased, be taken, and that , whatever sum the said Gustave Froschle or his estate would have been liable .toip,ay to, the,plaintiff,.,the sureties .on thé bond he adjudged to pay,- and that any or all of the creditors or next pf kin or representatives, of deceased, next of kin or creditors, be allowed, fo come in and claim their respective distributive shares of whatever may be recovered in jheir behalf. The defendants admit the allegations of the complaint,'by their demurrer, hut allege as a ground of their demurrer that the court had not jurisdiction of the subject, of .the action; that there is a defect of parties defendant, in that Sóphia'Fró.schíe, the administratrix of Gustave Froschle, decéásed, was not made.a party defendant to the,action; and that the complaint does not state facts¡ sufficient to constitute .a cause' óf ac; tion.

; Tjie learnqd¡judge/helqw held that the first and'thifd grounds of demurrer, were no.t well taken, hut ¡ that the second ground, that there, was a defect of parties" defendant, was well taken, and detained the demurrer on that, ground. We agree, with the learned court as to the first and third "grounds of demurrer. This question was presented to this court in thé case of Bischoff v. Engel, 10 App. Div, 243, 41 N. Y. Supp, 817. Mr.,Justice Barrett, in delivering ¡the opinion of the court there, says:

“The general rule is now .undoubtedly, well -Settled that the, sureties-.upon the bond of .an ,executor-or administrator are notifiable until -the default;o£ their .principal has .been established, before the, surrogate.. But exceptional circumstances may exist,, sufficient .to warrant-the .interposition «f a court of equity without the prior: establishment of this default, and to secure there the establi&hhfeiit; of such' default .with, as a ’sequence/ an appropriate judgment -against the sureties.” ;

It was there held that in a case where the administrator has converted' the estate to, his own use,"has;squandered the" proceeds of his conversion in a foreign state, has died there penniless, and has no personal representatives subject :to our jurisdiction, an action may "bé" maintained in the supreme court without a preliminary accounting before the surrogate, and that a judgment directing an accounting to ascertain for what part of the Sum he was liable, after 'allowing all just credits, and directing judgment for the sureties of the plaintiff against the sureties of the administrator for his share of the balance found to be chargeable against the administrator, was 'proper, and should tie affirmed. The fdcts alleged in the complaint and admitted by the answer are brought directly within the principle of,this case'. " Here it is alleged that the administratrix collected the moneys of the estate, and appropriated them to her own use, and ha's either absconded from the state, or keeps' herself so concealed ‘within tins state that the plaintiff is unable to serve her with process issuing tint of any of the courts of this state, of in any other way get jurisdiction over the said Sophia Froschle for the purpose of compelling her to account as such administratrix, These facts being admitted, no accounting before the surrogate was possible, except by reinoving the administratrix, and appointing another in her place; and as such administrator de bonis non would only be responsible for the property coming, into "Ms hands, "and as the complaint alleges that the administratrix collected all of the property of the deceased, such administrator de bonis non would receive no property of the deceased, and an accounting against Mm would be a mere idle ceremony. Upon" these allegations of the complaint, admitted by the demurrer,, the. surrogate’s court "could obtain no jurisdiction of the person .of the administratrix, to compel an accounting. The allegation, "whibh is admitted, is that, in consequence of the disappearance of the, said administratrix, the plaintiff is unable, by diligence of reasonable" effect, t,o serve upon, her process issuing out of any of the" courts of this state, or in any other way to get jurisdiction over the said Sophia FroscMe for the purpose of compelling her,.td acc.ohrit ad ,su,ch",administratrix. .This is. a fact.allege^ and admitted, and, in the absence of any property upon which a judgment of this,court.could act, it is quite.clear that no judgment against the administratrix, after service, of. process', upon her by, publica-, tipil,, or by substituted service, would tie of anv advantage to the plaintiff, In the case of Schwinger v. Hickok, 53 N. Y. 285, Andrews, J., in delivering "the opinion of the court, says: .

“The ¡jurisdiction to proceed by publication against a nonresident citizen attaches pnly..whéjñ he, pfis .property,in the state, .or .the suit- has relation to property'therein in Which he has "or cláims an interest. The "legislature .could perhaps have declared that judgment obtáiíiéd-' ugáiúst a hónresident upon Service'by"pUhliñátioii -niight >be!!enforced against '«11 property 'Of the defendant within The state.’ i Brito ti judgment would' -be' in'.rein, and= wbnld inipose no personal liability''upon thei'defendanti The' 'statute undei which ■ publica-* fion >in this case-’Xvasj'made does not undertake, to. make the judgment, ohtáiüed'. in The (próneedtogs'i ai 'general, lien- upori tbe'propertyi.'of thfeidef cridante

■ See, also,. McKinney v. Collins, 88 1ST. Y. 220, and Bank v. Parent, 13-4 N. Y. 530, 31 N. EL 976. In Bryan v. Publishing Co., 112 N. Y. 385,19 N, E, 825, the court say:

“Unless a cause of action arises witliin the state, or the defendant has property therein, and the court has jurisdiction over the subject of the action, neither the person nor property of a defendant could be affected by any judgment the court might, render. He could neither be punished for contempt in failing to obey its order, nor his estate he sold by reason of it. The jurisdiction of the court is limited by the boundaries of the state, and its process could not go beyond them. * * The court can give no relief,, and the impropriety of issuing an order, which, if it leads to a judgment, ‘would, operate on nothing in the state, and be regarded by nobody out of it/ becomes apparent. It offends every principle by which the jurisdiction of a court can be vindicated, and should not be allowed to stand.”

While here the cause of action arose within the state; the appropriation by the administratrix of all the property of the deceased, and her absconding from the state, or keeping herself so concealed therein that no service of process can be made upon her personally, would prevent the plaintiff from recovering a judgment against her which could be enforced in any way that would aid the defendants. Making her a party to such an action, and serving a summons upon her, by substituted service, could result in no judgment that could be of any practical use, and would seem to be an idle ceremony.

We think, therefore, that the judgment sustaining the demurrer should be reversed, and judgment entered overruling the demurrer, with leave to the defendant to answer within 20 days, upon payment of the costs in the court below and in this court.

VAN BRUNT, P. J., and WILLIAMS, J., concur. . PATTERSON, J., dissents.

O’BRIEN, J.

(concurring). One of the essential facts upon which the action must be predicated is the inability to serve the administrator or administratrix. If it should be held that the administratrix here was a necessary party, then this action could not be maintained; for it would presuppose that she could be brought within the jurisdiction of the court by some kind of service; and, if she could, then an accounting could be compelled, and a direct action against the bondsmen in the first instance would not lie. To repeat, therefore, it is because she "cannot he brought within the jurisdiction and compelled to account that this action is permissible, and it would defeat such an action to hold that she was a necessary party. I therefore concur in the conclusion reached by Mr. Justice IN-GRAHAM.  