Fritz C. Bischoff, in His Own Behalf and for the Benefit of all Other Heirs at Law and Next of Kin of Theresia Bischoff, who See Fit to Come In, Respondent, v. Jacob Engel and John Gitz, Appellants

Fritz C. Bischoff, in His Own Behalf and for the Benefit of all Other Heirs at Law and Next of Kin of Theresia Bischoff, who See Fit to Come In, Respondent, v. Jacob Engel and John Gitz, Appellants. Equity — remedy afforded by, against the sureties of a non-resident insolvent deceased administrator, although he has not disobeyed any order of a Surrogates Court— defect of parties. In an action brought by an heir at law in his own behalf, and in that of all the other heirs at law and next of kin, against the sureties upon an administrator’s bond given by the plaintiff’s father, as administrator of the plaintiff’s mother, it appeared that the plaintiff’s mother died in the county of New York, where the father was appointed her administrator, and in 1887 withdrew from a savings bank his wife’s deposit therein and removed to New Jersey, and there subsequently married and remained until he died in 1894 wholly insolvent, leaving only a watch and some clothing, having converted the entire estate to Ms own use, and not having filed any inventory, account or report of his proceedings, but leaving his second wife surviving him, who, after the commencement of this action, was appointed his administratrix. It appeared upon the face of the complaint that the plaintiff had a sister living, and it did not appear that an accounting had been had by the administrator or by his personal representative, or that either had disobeyed any order or decree of the Surrogate’s Court of the county of New York. Held, that the omission to make the sister a party plaintiff did not affect the cause of action; that as the objection, if a valid one, appeared plainly upon the face of the complaint, it was waived unless taken by demurrer; That the second wife of the administrator had, personally, no interest in the controversy, as she was entitled to no part of the estate of the first wife, and could not be made a party, as a foreign administratrix of her husband, our courts having no jurisdiction over a foreign non-resident administratrix; That the action was maintainable against the sureties of the deceased administrator, although neither he nor Ms representatives had disobeyed any order or decree of the Surrogate’s Court of the county of New York touching the administration of the estate; That, in view of the fact that the administrator had squandered the estate and had died in a foreign State wholly insolvent, and that his personal representat-ive was without the jurisdiction of the courts of the State of New York, and that the surrogate of the county of New York could neither appoint a personal representative of the deceased nor compel the personal representative appointed in the State of New Jersey to account, and that unless this action could be maintained the sureties would permanently escape and the persons for whose benefit the bond was given be remediless — equity would interfere to protect the next of kin. Appeal by the defendants, Jacob Engel and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13tli day of April, 1896, upon the decision of the court rendered after a trial at the New York Special Term. The action was brought by Fritz C. Bischoff, in his own behalf and for the benefit of all other heirs at law and next of kin of Theresia Bischoff, deceased (who shall see fit to come in), against the sureties upon an administrator’s bond, given by Fritz’s father, who was also named Fritz C. Bischoff. The plaintiff is the son of 'Theresia Bischoff by this Fritz C. Bischoff, Sr. Theresia died in May, 1887, in the city of New York, where she had resided for some eleven years. Her husband thereupon obtained from the surrogate of the county letters of administration upon his wife’s estate. Upon the receipt of these letters Fritz C. Bischoff, Sr., gave the bond in suit. At that time Theresia had on deposit in the German Savings Bank upwards of $3,700; and shortly after the receipt by him of the letters of administration, namely, in the month of July, 1887, Fritz C. Bischoff, Sr., withdrew this money from the bank and duly receipted for it as his wife’s administrator. Thereupon this administrator departed from this State, taking with him all his property, and settled in the State of New. Jersey, where he resided continuously until the time of his death, which occurred on the 17th day of July, 1894. The court at Special Term found these facts upon undisputed evidence. The court also found, upon sufficient evidence, that the administrator in his lifetime converted all the goods, chattels and credits of Theresia Bischoff to his own use; that he died leaving no assets or property of any kind in this State; that his estate in New Jersey was of no greater value than forty dollars—• consisting only of a watch and some clothing: that the plaintiff has not been paid any part of the money received by the administrator; that the administrator never filed any account, inventory or report of his proceedings, and that no orders or decrees in the matter of his administration have ever heen made by the surrogate subsequent to the granting of the letters. Upon these facts the court at Special Term held that the sureties were liable, and directed an accounting to ascertain for what part of the sum received by the administrator he ivas liable, after allowing all just credits and such amounts as may have been advanced or paid out for the use and benefit of the plaintiff. For his share of the balance found to be chargeable against the administrator upon such accounting, the plaintiff is then to have final judgment. From this interlocutory judgment the defendants appeal. John A. Kamping, for the appellants. Frank M. Hardenbrook, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The defendants make a preliminary point that the complaint does not state facts sufficient to constitute a cause of action in failing to allege a reason Avhy plaintiff’s sister was not joined as co-plaintiff. The failure to make such an allegation might have had a bearing upon another question, viz., whether there Avas a defect of parties plaintiff. But it does not affect the sufficiency of the cause of action as alleged. The objection that the plaintiff’s sister Avas not joined as co-plaintiff should lme been taken by demurrer ; and, not having been so taken, it was waived. The objection appeared plainly upon the face of the complaint where the relationship and interest of this sister are distinctly averred. No objection was taken upon this head during the trial, nor was any suggestion made to the learned trial judge that a complete determination of the matters in controversy required the bringing in of this sister as a party to the action. The case was evidently tried upon the theory that the plaintiff was authorized to bring the action upon his oaaoi behalf, and for the benefit of all other heirs at law and next of kin avIio might come in. Whether this was a correct theory, Ave need not consider. It is sufficient upon this appeal to determine that the point now made by the appellants is untenable. The defendants also claim that there is a misjoinder of parties, in that the representative of the deceased administrator should have been a party defendant; also his AvidoAV (he having married a second time). The widow, as such, had no possible interest in this controversy. She certainly can take no jiart of the first wife’s estate. But it appears also that she is also the legal representative of her husband, having been appointed his administratrix by a probate court in New Jersey long after the commencement of this action, and in fact shortly before the trial under review'. Even if the trial court had suspended the proceedings and required the plaintiff to bring the foreign administrator in, it is difficult to see how this could have been done. This court can exercise no jurisdiction over a foreign administrator, who is a non-resident of this State, and who is personally absent therefrom. Neither the representative nor the individual is subject to our judicial power. Again, the point that the action would not lie until a legal representative of the deceased administrator had been appointed and made a party defendant, was not raised by the answer. The only defect of parties defendant set up in the answer is the omission of the widow individually. The main point raised by the defendants is undoubtedly this: That no action can be maintained against the sureties until an accounting has been had against the deceased administrator or his personal representative; nor until that administrator or his personal representative has disobeyed some order or decree of the Surrogate’s Court of this county touching the administration of this estate committed to his charge. This point is supported by the cases of Hood v. Hood (85 N. Y. 561); Haight v. Brisbin (100 id. 219); Perkins v. Stimmel (114 id. 359), and French v. Dauchy (134 id. 543). The general rule is now, undoubtedly, well settled that the sureties upon the bond of an executor or administrator are not liable until the default of their principal has been established before the surrogate. But exceptional circumstances may exist sufficient to warrant the interposition of a court of equity (without the prior establishment of this default), and to secure there the establishment of such default with, as a sequence, an appropriate judgment against the sureties. This was assumed in Hood v. Hood {supra), where Judge Bapallo said: “ Assuming that in a case where the statutory remedies upon the bond cannot be pursued, a court of equity can interpose and establish a breach in some other manner, and give a remedy against the sureties without any order for the prosecution of the bond, all the authorities which have been cited agree that special circumstances must be shown establishing the necessity for the interposition of a court of equity, and that if the legal remedies can be pursued, they alone can be resorted to.” The language of Judge Finch in Haight v. Brisbin (supra) is more direct and decisive. “ The plaintiff,” said the learned judge, “ insists that for this injury the surrogate can give no redress, and, therefore, to require his preliminary adjudication would involve an impossible-condition and leave the injury inflicted without a remedy. If such a case should occur, equity would be quite sure to furnish a remedy.” The possibility of these exceptional circumstances was also recognized in French v. Dauchy (supra), where Judge Bbadley said: “No reason appears why such accounting could not and should not have been had preliminarily to the action against the sureties, and for that reason the order should be affirmed.” The present case furnishes an extreme example of the special circumstances which justify the interposition of a court of equity. Indeed, it is perfectly evident that, unless this action can be maintained, the sureties will permanently escape, and the persons for whose benefit and security the bond was given will be wholly remediless. It is clear that the surrogate has no jurisdiction to require any preliminary accounting. The administrator is dead and his personal representative is without the jurisdiction. The administrator died in a foreign State wholly insolvent. He left a watch.and some clothing, worth, perhaps, forty dollars, not enough, probably, to bury him decently. There is a suggestion that he left some real estate in New Jersey, but that suggestion is idle. He held some property there jointly with his second wife—- that is, in their joint names — and upon his death the title vested in the survivor. Thus, we have a case where the administrator has converted the entire estate to his own use, has squandered the proceeds of his conversion in a foreign State, has died there penniless and has no personal representative subject to our jurisdiction. To 'require a preliminary accounting under such circumstances would be a mockery of justice. The surrogate of this county can neither appoint a personal representative of the deceased here nor can he compel the personal representative who has been appointed in the State off New Jersey, and who remains within that State, to come here and account before him. Our surrogate might appoint an administrator of Theresia Bischoff’s estate in place of the deceased administrator, but such administrator would only be liable to account for what came into his hands. lie would not, like the administrator of the deceased administrator, be liable to account for what came into the latter’s hands. We think, therefore, that the action in equity was properly brought and that the relief granted was appropriate under the special circumstances disclosed. There was no error in the ruling as to the allowance of interest, nor do we find any substantial error in the record. The interlocutory judgment appealed from should he affirmed, with costs. Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred. Judgment affirmed, with costs.