
    William H. Flandrow, Appellant, v. Henry B. Hammond, Respondent.
    
      Foreign executor ■—not entitled to am, order that lie be substituted as a party defendant in an action in the State of New York.-
    
    A foreign executor cannot sue or be sued, purely in his representative capacity, in the courts of the State of New York.
    Where an action is based upon a .contract made between the plaintiff and a defendant, who dies after judgment has been recovered against him, but before ■ -his time to appeal has expired, the executrix of the defendant, appointed in another State, and to whom no ancillary letters have been issued, is not entitled to an order that the action be revived and continued against her as executrix.
    
      Appeal by the plaintiff, William H. Flandrow, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1896, reviving and continuing the action against Elenore B. Hammond, as executrix under the last will and testament of Henry B. Hammond, deceased, who was appointed such executrix by the Probate Court of Norfolk county, in the Commonwealth of, Massachusetts.
    
      Abram Kling, for the appellant.
    
      Nelson S. Spencer, for the respondent.
   Williams, J.:

This action was brought to recover the consideration paid' for a judgment transferred by defendant to plaintiff, to which judgment defendant had no title. The answer was, in substance,, a general denial. A judgment was recovered in the action against the defendant. Before the time to appeal had expired the defendant died, and the executrix was appointed in the State of Massachusetts.

No ancillary letters were granted in this State. The foreign executrix thereupon made the motion resulting in the order appealed from. We think that the order was erroneously granted.

' The general rule is well settled that a foreign executor cannot sue or be sued purely in his representative capacity in the courts of this State. (Matter of Webb, 11 Hun, 124; Vermilya v. Beatty, 6 Barb. 429; Field v. Gibson, 20 Hun, 274; Hopper v. Hopper, 125 N. Y. 400; Johnson v. Wallis, 112 id. 230; Dolittle v. Lewis, 7 Johns. Ch. 45; Petersen v. The Bank, 32 N. Y. 21; Lawrence v. Lawrence, 3 Barb. Ch. 74.)

It will not do to say that a foreign executor may sue or defend in this State if he voluntarily submits himself to the jurisdiction of our courts, because the rule is that he may no more sue than be sued in our courts. He would certainly submit himself to such jurisdiction if he were to a suit here, but this he cannot do by reason of this well-settled rule.

In Hopper v. Hopper (125 N. Y. 400, 402, 403) it was said, “ By the phrase foreign executor,’ the courts never mean the mere non-residence of the individual holding the office, but -the foreign origin of the representative character. That is the sole product of the foreign law, and depending upon it for existence, cannot pass beyond the jurisdiction of its origin. The individual may come here and acquire rights or incur liabilities which our tribunals will defend or enforce, but he can have no representative rights or liabilities, since we recognize in him no representative character. The foreign executor may make a contract here which our courts will compel him to perform, because it is Ms contract, but where it is the testator’s only; he cannot sue or be sued upon it, since the right or the liability is purely representative and exists only by force of the official character, and so cannot pass beyond the jurisdiction which gave it. (Johnson v. Wallis, 112 N. Y. 230.)”

And in the latter case it was said: “ They (the defendants) rely mainly upon-the proposition that, as. foreign executors, they could not sue or be sued in this State, and acquire all their rights from, and owe their responsibilities to, another jurisdiction. That is the general rule, hut in this State, at least, is confined to claims and liabilities resting wholly upon the representative character. In Lawrence v. Lawrence (3 Barb. Ch. 74) the rule was declared to be applicable only to suits brought upon debts due to the testator in his lifetime, or based upon some transaction with him, and does not prevent a foreign executor from suing in our courts upon a contract made with Mm as such executor. Of course where he can sue upon such a contract he may he sued upon it. The remedy must run to each party or neither.”

In Lawrence v. Lawrence (supra) the action was brought by the foreign executor to foreclose a mortgage given to a co-executor after the death of his testator, and it was said, “ As a general rule, a foreign executor is not entitled to sue in our courts. * * * These rules, however, are only applicable to suits brought by executors for debts due to the testator, or where the foundation of the suit is based upon some transaction with the testator in his lifetime. And they do not prevent a foreign executor from suing in our courts upon a contract made with him as such executor.”

In this case the executrix asked to be made a party in her purely representative capacity, the subject-matter of the suit being a transaction had with the testator in his lifetime. Under the rule we have stated, she cannot be. a party either plaintiff or defendant in the action.

It. is said that letters ancillary iu this State cannot be issued because there is no property of the estate here, and, therefore, the- estate will be without remedy to review the judgment in this case, if the rule we have stated is applicable here.

The appellant seeks to answer ,this by the suggestion that property of the estate might be brought here so as to confer jurisdiction upon our courts to grant letters ancillary, if the executrix is inclined to bring such property here. Without passing upon the question which might arise in- ease this were done, it is sufficient to say that there is nothing in the present record to vary the long settled and established rule to which reference has been made, and that rule cannot be disregarded for the purposes of" any particular case.

The order was clearly unauthorized and must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey. and Patterson, JJ., ' concurred.

Order reversed, with ten dollars costs and disbursements, and ' motion denied, with ten dollars costs.  