Opinion
May 15, 1942.
John F. Burke, for the petitioner.
E. Fichandler, for the respondents.
The respondents-executors of this estate have properly raised the question as to the lack of status of the foreign executrix to initiate a proceeding pursuant to section 206-a of the Surrogate's Court Act for the recovery of property from the executors of the estate pending in this court. The respondents' contention is sustained.
In the ordinary case a foreign executor or administrator is not entitled to initiate an action or a proceeding. ( Kirkbride v. Van Note, 275 N.Y. 244.) In that decision Judge FINCH stated this general rule. He pointed out that at common law the foreign administrator had no standing in the courts of our State unless he first had himself appointed as an ancillary administrator. (Citing Helme v. Buckelew, 229 N.Y. 363.) He further stated that in certain exceptional and extraordinary cases foreign legal representatives may be accorded a standing in our courts where it is essential to the administration of justice or where a denial of the right to appear would work a gross injustice. The courts in the latter class of cases act as a matter of comity.
For some years prior to 1926 a foreign executor or administrator could sue or be sued in the courts of this State by express statutory permission. (Section 1836-a of the Code of Civil Procedure, later enacted into section 160 of the Decedent Estate Law.) In 1926 the Legislature repealed section 160 of the Decedent Estate Law (Laws of 1926, chap. 660) and removed the statutory authority for the foreign legal representative to initiate an action or proceeding.
The executrix here is directed to apply for ancillary letters testamentary in order to afford her a legal standing. Thereafter an appropriate order may be submitted substituting her in that capacity as the petitioner in the pending proceeding.
Disposition of the present motion for the examination of the respondent-executors of the estate of the decedent here, Fred C. Bettelheim, will be suspended pending compliance with the foregoing directions.
Proceed accordingly.