Summary
In Matter of Tartaglio (12 Misc. 245, 246) a much-cited case, the court, while passing on the right of an Italian Consul to demand and receive for his nationals their distributive shares of an estate, wrote that the word "defend" in the applicable treaty "is to be given the broadest meaning, and includes the power to maintain affirmatively the rights of the consul's countrymen, and our local as well as federal judiciary must, in obedience to the treaty, recognize such rights."
Summary of this case from Matter of ZalewskiOpinion
April, 1895.
D. Humphreys and C.H. Ostrander, for petitioner.
Wilson Brown, Jr., for county treasurer.
Application is made by the consul-general of Italy at New York to have paid to him the distributive shares of the widow and five minor children in the estate of Libretto Tartaglio, an Italian subject, who died leaving personal property which has been administered in this county, and which distributive shares have been deposited with the county treasurer pursuant to a decree of this court.
The widow and children are residents and subjects of the kingdom of Italy.
The county treasurer opposes the application upon the ground that the consul-general has no authority to receive such distributive shares and give such an acquittance as will relieve him from responsibility.
The rights of subjects of foreign countries, both as to their persons and property, largely depend upon treaty provisions. The treaty between the United States and the kingdom of Italy provides that consuls-general "may have recourse to the authorities of the respective countries within their respective districts, whether federal or local, judicial or executive, in order to defend the rights and interests of their countrymen."
The term "defend," as used, is to be given the broadest meaning, and includes the power to maintain affirmatively the rights of the consul's countrymen, and our local as well as federal judiciary must, in obedience to the treaty, recognize such rights. But in the absence of such treaty provision a foreign consul would have much the same power.
We find the rule laid down in Kent, "the practice of our courts is that a foreign consul may assert and defend as complainant party the rights and property of a person of his nation."
The consul of a foreign nation recognized by the United States is competent to defend and watch over the interests of persons of his nation, and may bring suits for such purpose without any special authority from the parties in interest. The Bello Corrunes, 6 Wheat. 168.
The court says in the case cited, "that a vice-consul duly recognized by our government is a competent party to assert or defend the rights of property of the individuals of his nation in any court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects wherever the pursuits of commerce may draw them or the vicissitudes of human affairs may force them is the great object for which consuls are deputed by their sovereigns, and in a country where laws govern and justice is sought for in courts only it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it."
Foreign consuls have authority and power to administer on the estates of their fellow subjects deceased within their territorial consulate. Wheat. Int. L. (2d Eng. ed.) 151; Woolsey Int. L. § 96.
The right to demand and sue for necessarily implies the authority to acquit and release. In case of a debt due by a resident of this state to the widow and children of Libretto Tartaglio there would seem to be no doubt not only of the consul's power, but his duty under the authorities to demand and collect it, and if so, I can see no reason in principle that would prevent his demanding and receiving moneys or property deposited in court belonging to a subject of such consul's country. Neither can I see that the infancy of some of the parties affects or limits the right or power of the consul. The question as to what disposition may be made of the property after the consul has received and exported it is something with which our courts have nothing to do; that is to be settled by the laws or authority of the government to which the foreign subject owes allegiance.
An order will be made directing the county treasurer to pay the distributive shares of the widow and children of Libretto Tartaglio in his estate, deposited with said county treasurer pursuant to the decree of this court, to the consul-general of Italy at New York upon his executing and delivering a proper receipt therefor.
Ordered accordingly.