
    JONAS FISCHER, Appellant, v. MAX FISCHER, Respondent.
    
      Examination before trial—vacated when court has not jurisdiction.—Foreign administrator—;jurisdiction over—actions against—action for distributive share.
    
    It is competent for the court to vacate an order for the examination of a party before trial on the ground that it appears that the court has • no jurisdiction over the subject matter of the action.
    An action at law is not sustainable for a distributive share of an intestate’s property, although a promise to pay has been made, unless it appear that the administrator holds the property individually upon a new contract of loan to him. The remedy in other cases is in equity, which may not be invoked against a foreign executor or administrator unless it be established that there is a fund or property of the estate in this state.
    
      
      Decided February 4, 1884.
    Accordingly, when in such an action, the complaint alleges the appointment of defendant as administrator in another state, and the collection by him as such in said state of certain moneys due his intestate, and that defendant is a resident of this state and has the moneys referred to: in the absence of a specific allegation that such moneys are here, they will be deemed to be in the foreign jurisdiction) and an order for the examination of defendant will be vacated on the ground of lack of jurisdiction over the subject matter.
    Before Sedgwick, Ch. J., and O’Gorman, JJ.
    Appeal by plaintiff from order vacating an order for the examination of defendant before trial.
    The facts appear in the opinion.
    
      D. S. Riddle, for appellant.
    At the worst, the complaint only alleges the jurisdictional facts imperfectly or not sufficiently at large. But for such defect defendant’s remedy was a motion to make more definite and certain (Code Civ. Pro. § 546), and not a motion to turn plaintiff out of court for imperfecty pleading. The allegations of a pleading must be construed (Code Civ. Pro. § 519). Demurrer is not the remedy for uncertainty in a pleading, but a motion to make.more certain is (Spies v. Access Trans. Co., 5 Duer, 662; Graham v. Camman, Id. 697; Seeley v. Engell, 13 N. Y. 548; Hale v. Omaha Nat. Bank, 49 Id. 627; Richards v. Edick, 17 Barb. 260; Chesbrough v. N. Y. & E. R. R. Co., 26 Id. 9 ; Moffat v. McLaughlin, 19 Hun, 449); to sustain a demurrer, it is not enough that the facts in the complaint are imperfectly or informally averred, or that it lacks definiteness (Marie v. Garrison, 83 N. Y. 14; Pouty v. Whipple, 10 Week. Dig. 387). As above stated, the objection to the complaint on the ground that it does not contain sufficient facts or does not confer jurisdiction is in the nature of a demurrer.
    
      Blumensteil & Hirsch, for respondent.
   By the Court,—Sedgwick, Ch. J.

If it appeared that the court had not jurisdiction of the subject matter of the action, then it was competent to vacate the order of examination, although that might be doubtful if the objection were that the complaint did not state facts sufficient to constitute a cause of action of which the court would have jurisdiction when properly stated.

The complaint stated that the plaintiff was one of the next of kin of Elizabeth Fisher, always resident of and who died in Hungary; that the defendant obtained in the state of Georgia, from a court competent in such matters, under proper circumstances, letters of administration upon the estate of Fischer, and thereupon collected from a debtor of Fischer, residing in Georgia, $1,000, due to her; that defendant is a resident of the state of New York and has possession of said $1,000; “ that no part was needed to pay debts of the deceased or any funeral or other necessary expenses of her, and that the defendant has paid no such debts or expenses with said $1,000, or upon the credit thereof, and has no claim upon or offset to the same by reason of having paid any such debts or expenses, or for any other like cause, and he has fully administered upon the estate of said deceased, Elizabeth Fischer, under said letters of administration ; and that there remains in his hands as such administrator over $1,000 of the estate of said deceased Elizabeth Fischer, to be distributed among the next of kin.” The complaint demands that the plaintiff be adjudged to account for the said moneys, and to pay over to this plaintiff his distributive share “or other share,” of the same with interest.

An action at law is not sustainable for a distributive share of an intestate’s property to which the plaintiff is entitled, although the personal representative has promised payment, unless there bfe evidence showing that he holds the money, not as executor or administrator, but in his individual character, upon a new contract of a loan of it to him (1 Chitty Pl. 101, and cases in New York and other states cited in the notes).

The remedy is the resort to a court of equity, or other court with like power to compel the administrator to perform his duty, in respect of the property, of which beholds the legal title for the benefit of such persons as are by the law interested in it. Accordingly, the courts of this state having no jurisdiction over administration by foreign executors or administrators, in general, will have no jurisdiction in particular, unless it is established that there is within this state a fund or property. Substantially they will act in rem through the form of an action against the administrator (Vermilya v. Beatty, 6 Barb. 429, and the cases cited).

The complaint states that the defendant is a resident of this state, and that he has the $1,000 referred to. It is consistent with this, that the money is not in fact within this state. As the pleader omits to state the existence of a fact of so much importance to the cause of action, the presumption is that the allegation could not truthfully be made. The matter cannot be dealt with on a supposed presumption that the personal property of a person is where he is actually. The presumption in this case is that the property to be administered is within the jurisdiction of administration. If it were not so, a foreign administrator who was a resident of this state could in all cases be compelled to administer here by a court in equity.

It seems to me that this is not a case of an omission to state a fact, which, with the facts stated, would make a cause of action ; for, on the facts stated, the court has no power to grant the relief which is affirmatively demanded.

Order affirmed, with $10 costs, and disbursements to be taxed.

O’Gorman, J., concurred.  