In re Skelly

This is an appeal from an order of one of the surrogates of the county of New York, directing that proceedings to punish Mary A. Skelly, executrix, etc., for contempt be set aside. It appears that on the" 28th day of February, 1905, a decree was entered in this proceeding in the Surrogate’s Court, directing Mary A. Skelly to pay to the City Trust, Safe-Deposit & Surety Company of Philadelphia a certain sum of money within 20 days after the service of a copy of the decree. Upon her failure to do so, the attorney at law for the trust company, on his own affidavit, obtained an order to show cause why Mrs. Skelly should not be punished for contempt for such failure. The return day of the order to show cause was the 2d of May, 1905, and the application was then heard. On the 5th of July, 1905, the surrogate granted the application. On the same day the surrogate granted an order to show cause why the application theretofore made to punish the respondent, Mary A. Skelly, for contempt “should not be set aside,” and why the decision granting such application should not be vacated and set aside, on the ground that the said proceeding abated prior to the making of such decision, and why the respondent, Mary A. Skelly, should not have such other and further relief as may be just in the premises. On this last mentioned application to the surrogate it was made to appear that on the 24th day of June, 1905, in the Court of Common Pleas No. 5 for the county of Philadelphia, in the state of Pennsylvania, the “City Trust, Safe-Deposit & Surety Company of Philadelphia” was dissolved, and a permanent receiver was appointed of all its property. Therefore, when the decision of the Surrogate’s Court was made to punish Mrs. Skelly for contempt in not paying over moneys to the “City Trust, Safe-Deposit & Surety Company of Philadelphia,” there was no such corporation in existence. The proceeding abated, and when the application now under review was presented to the surrogate, he had no power to entertain it, for the corporation making that application had been judicially dissolved; it had ceased to exist; it could neither sue nor be sued, so far as the record now before us discloses. Merchants’ Loan & Trust Co. v. Clair, 107 N. Y. 663 , 14 N. E. 414 . There is no question involved here of the rights of domestic creditors as affected by the dissolution of a foreign corporation, or of the right of a receiver appointed in this state, if and when appointed.

The matter upon which the surrogate acted having been coram non judice, the appeal must be dismissed. All concur.