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de Nobele v. Lee

47 N.Y. Super. Ct. 372 15 Jones & S. 372 Court N.Y. Super. Ct. Decision date 1881-06-06 English

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p. 372
EDWARD de NOBELE, et al., Curateurs of the Estate of JOHN PFEFFER & CO., Respondents, v. STEPHEN LEE, et al., Appellants.

Headnote

Pleading—motion to malee definite and certain—necessary allegations in complaint of personal representatives, appointed by court of foreign country.— Code Civil Procedure, § 532.
Where plaintiffs claim the right to maintain their action in a representative capacity conferred on them by a foreign tribunal, and that the cause of action passed to them by virtue of such appointment, and by the operation of the laws of a foreign country, the complaint should fully and definitely state the nature of the proceedings and of the judgment or determination by which they were so appointed; the title of the court, and the place where it was located or held its sittings; and its j urisdiction to entertain the proceedings. Whether section 532 of the Code of Civil Procedure,—which enacts that in pleading the judgment of a court of special jurisdiction, the jurisdiction may be pleaded as a fact,—applies to courts of other States and foreign countries, gucere.
Before Sedgwick, Ch. J., and Freedman, J.
Decided June 6, 1881.
Appéal from order denying defendant’s motion to have the allegations contained in the first paragraph of the complaint made more definite and certain.
L Childs & Hull, for appellants.
p. 373
Moarts, Southmayd & Choate, attorneys, and Joseph JET. Choate, of counsel, for respondents.

Whether section 161 of the Code applied to foreign judgments or judgments of another State, has been doubted (Hollister v. Hollister, 10 How. 532 ; McLaughlin v. Nichols, 13 Abb. Pr. 244 ), and as section 532 of the Code of Civil Procedure is simply a re-enactment of section 161 of the preceding Code, the doubt .equally attaches to that.

I do not deem it necessary, however, to decide the question, as there are other considerations for which the motion should have prevailed to some extent at least.

The plaintiffs’ cause of action is not on a foreign judgment against the defendants. The plaintiffs claim the right to maintain the action in some representative capacity conferred on them by some foreign tribunal, and that the present cause of action, if any, passed to them by virtue of their appointment and by virtue of the operation of the laws of a foreign country. Their allegation is :

“ That heretofore and on or about the tenth day of November, eighteen bundled and eighty, the plaintiffs were by the proper courts of Belgium appointed cnrateurs of the estate of the firm of John Pfeffer & Co., who were then and had theretofore been residing and doing business in Ghent, in said Belgium, such courts having jurisdiction of the said firm of John Pfeffer & Co., and of the matter of the appointment of curateurs of their estate, and such appointment as curateurs as aforesaid was thereupon duly accepted by the said plaintiffs, and that the plaintiffs, as such curateurs, on or about the said tenth day of November, eighteen hundred and eighty, became and have ever since been and now are vested with all the assets and estate of

p. 374
such firm of John Pfeifer & Co., including all claims and demands of whatsoever nature due or owing to them, and including the claims and demands in favor of said John Pfeifer & Co. against the defendants hereinafter mentioned.”

This is not a sufficient statement of the nature of the proceeding in the course of which the appointment was made, nor of the nature of the judgment or determination by which the appointment was conferred, nor of the title of the court that gave the judgment or made the determination, nor of the place where the said court was located or held its sittings, nor of the jurisdiction of the said court to entertain the proceeding which terminated in the appointment. These matters, under the peculiar circumstances of the case, constitute traversable facts as to which the defendants may well claim definite information before answering. Their claim in these respects is a substantial right, and to this extent their motion should have been granted.

The order should be reversed with costs, and defendants’ motion granted in conformity with the foregoing views.

Sedgwick, Ch. J., concurred.

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