[141 N.Y.S.2d 740] Paul Derins, New York City, of counsel (Dwight, Royall, Harris, Koegel & Caskey, New York City, attys.), for appellant.
Eben C. Gould, New York City, for respondent.
Before PECK, P. J., and COHN, BREITEL, BASTOW and RABIN, JJ.
Involved in this case is the question whether a foreign executrix may, in her official capacity, be compelled to arbitrate a dispute to which her decedent was a party. It is this court's view that Special Term had no power to so direct the foreign executrix.
Petitioner, a buyer of lumber prior to his death, and respondent, the seller, entered into contracts in 1946, containing a provision for arbitration in this state of any controversies or claims arising out of the contracts. When a dispute arose, because of the buyer's failure to supply a letter of credit, the seller demanded arbitration. The buyer, as petitioner, then instituted this proceeding, applying for a stay of arbitration and a trial by jury of the issue of fact as to the making and validity of the alleged contracts. The application was granted on condition that petitioner 'shall duly pay the fees required by law'.
Rather than comply with the condition of the order, petitioner moved for a permanent restraining order on the ground that the law of North Carolina, where the alleged contracts were made,
prevented arbitration. Following a denial of this motion, petitioner successively and unsuccessfully appealed. 272 A.D. 801, 71 N.Y.S.2d 892, affirmed 297 N.Y. 433, 79 N.E.2d 815, certiorari denied 335 U.S. 843, 69 S.Ct. 65, 93 L.Ed. 394.
[141 N.Y.S.2d 741] Although certiorari was denied by the Supreme Court of the United States in October 1948, no steps were taken by petitioner or, after his death, his executrix, to comply with the court's order which conditionally stayed arbitration. In July, 1952, petitioner, a domiciliary of North Carolina, died in that state. His executrix, a resident of North Carolina, was appointed by a court of that state. No ancillary letters have been issued by any court in this state and no asset of petitioner's estate is in New York.
The issue involved in this case has arisen as a result of a motion made by the seller to (1) substitute the executrix as petitioner in this proceeding; (2) dismiss this proceeding to stay arbitration; (3) vacate the stay of arbitration heretofore issued; and (4) direct the executrix to proceed to arbitration. The executrix, appearing specially, cross-moved to set aside service. Special Term granted respondent's motion in full and denied the cross-motion.
It has long been the law in this State that a foreign personal representative may not, in his official capacity, be substituted for a nonresident party who dies during the pendency of an in personam proceeding in a court of this State. McMaster v. Gould, 240 N.Y. 379, 148 N.E. 556, 40 A.L.R. 792; Helme v. Buckelew, 229 N.Y. 363, 128 N.E. 216; Neuberger v. Hart, 266 A.D. 612, 44 N.Y.S.2d 490; 17th Annual Report of N.Y. Judicial Council , p. 153 et seq. The only exception to this rele exists where the proceeding involves determination as to a res within the jurisdiction of the court. Thus, in the McMaster case, supra, where the court held that due process precludes the legislature from providing generally for the continuance of actions in personam against foreign personal representatives of deceased defendants, the court observed:
'The executor as individual and as an official is in the theory of law two persons. Even as to foreign executors, there must be a domicile or possession which gives to the res to be administered a situs in New York.' 240 N.Y. 379, at page 386, 148 N.E. 556, at page 558.
Applying these principles to the instant case, we are of the view that the foreign executrix could be given notice, as if a party, for the limited purpose of vacating the outstanding stay and dismissing the proceeding instituted by her decedent for stay of arbitration. It is so held because no liability of the estate or of the personal ...