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App. Div. 624]

First Department, July, 1921.

the last will and testament of John Fleming, deceased, for an order to strike from the answer of the defendant Moran Towing and Transportation Company each and every affirmative defense therein set forth.

This action is brought in equity by the plaintiff John Fleming to procure a judicial construction of the last will and testament of his father, John Fleming, deceased, and to obtain the decree of the court directing the defendant James J. Larkin, as sole surviving executor of and trustee under his father's will, to pay over to the plaintiff the whole or a part of the residuary estate of his said father. The will of John Fleming, deceased, among other things, by its 14th clause, provided that the residue of his estate should be held by his executors named in said will, or the survivor of them, in trust to invest the same and receive the income therefrom, to pay taxes and expenses thereon, and pay over the net income therefrom in such sums as testator's said executors in their wise judgment and discretion might deem proper to his son, the plaintiff, until he should attain the age of twenty-five years, at which time, the will provided, by said 14th clause, that he should be paid the sum of $50,000, and upon the plaintiff reaching the age of thirty years, if at that time, in the wise judgment and discretion of testator's said executors, or the survivor of them, testator's said son, the plaintiff, was capable of properly managing, caring for and preserving the same, then the testator directed that the remainder of his residuary estate be paid over to his son, the plaintiff, absolutely and forever. By said clause the testator further provided that in case said executors in their wise judgment and discretion should determine that the plaintiff was not capable of properly managing and caring for the remaining principal of the residuary of testator's estate upon arriving at thirty years of age, then the executors, or the survivor of them, were directed to continue said trust until such time as they might determine that the plaintiff was competent to properly manage and care for the same or until his death, in the meantime paying the net income to testator's said son, the plaintiff, in such sums and at such times as said executors might elect. In the event of the death of said son before distribution of APP. DIV.- VOL. CXCVII. 40

First Department, July, 1921.

[Vol. 197

said residuary estate, the testator left the same to other beneficiaries.

The plaintiff, in his complaint, alleges that he has attained the age of thirty years, and that he has since his father's death conducted his business, and that the defendant Larkin, as sole surviving executor and trustee under said will, has determined and should determine that the plaintiff is entitled to said residuary estate, and the plaintiff demands judgment for a construction of his father's will, and particularly the 14th clause thereof, in such manner that the defendant, as sole surviving executor and trustee, be directed to pay to the plaintiff the entire balance of said residuary estate.

The defendant Larkin, as sole surviving executor, answered in the action, denying the allegations of the plaintiff's complaint as to his ability to successfully manage the residuary estate, and alleging the necessity for the continuance of said trust in the hands of said defendant.

The Moran Towing and Transportation Company, after the commencement of said action, applied to the court for leave to intervene as a party defendant, alleging that it was a judgment creditor of the plaintiff and had obtained a judgment against him in the Kings County Supreme Court on July 13, 1920, in the sum of $18,243.14, and that execution against said plaintiff was returned unsatisfied, and that thereafter an order was made and entered directing a garnishee execution against the income of said residuary estate held in trust by the defendant Larkin and which income was payable to the said plaintiff by said trustee, and that thereupon such execution was issued to the sheriff of New York county and thereby the said trustee was required to pay ten per cent of the income of said estate to said sheriff, and that thereby the Moran Towing and Transportation Company acquired and now possesses a specific lien upon the trust estate and the income thereof, and was a necessary party to the action affecting the same. An order was made permitting said defendant to intervene. Thereupon the said intervening defendant answered, denying the allegations of the 17th clause of plaintiff's complaint, wherein the plaintiff alleged that said plaintiff and the defendant James J. Larkin, as sole surviving executor and trustee of the last will and testament of John Fleming,

App. Div. 624]

First Department, July, 1921.

deceased, and John Fleming, Jr., and the other contingent remaindermen named in said will were the only parties interested therein, and by way of further answer to the complaint the said intervening defendant, as a basis for affirmative relief in its favor, alleged and set forth its claim against the estate of the testator and in particular against the interest therein of the plaintiff, alleging and setting forth the particulars with reference to its claim against the plaintiff and its reduction to judgment, the issuance of the garnishee execution, and the obtaining of the lien of said towing company against said trust estate and the income thereof. The intervening defendant, in its answer, demanded judgment adjudging and decreeing that the estate of the decedent and the trust funds and property in the hands of the defendant Larkin, as trustee, were liable for the claim of the said intervening defendant, and that the court decree that the said surviving executor pay to the said intervening defendant in satisfaction of its said claim the balance due, with interest. It was to strike out the allegations of said answer of the intervening defendant that the appellant applied, and his application was denied. In such denial I think the court clearly erred.

The action is brought to obtain a construction of the will of the testator, and to determine whether and to what extent the plaintiff is entitled to receive the trust estate. In the answer of the intervenor an attempt is made to allege and have litigated matters clearly not within the domain of the controversy as determined by the complaint. This may not be done. (Nauss v. Nauss Brothers Co., No. 2, 195 App. Div. 328.)

The defendant trustee properly moved to strike out the irrelevant matter contained in the respondent's answer. He could not demur, and his only remedy was by motion to strike out. (Code Civ. Proc. § 545; Stibbard v. Jay, 26 Misc. Rep. 261; North River Savings Bank v. Buckley, 130 N. Y. Supp. 787; Bradley v. Sweeny, No. 1, 120 App. Div. 315, 317.)

If the plaintiff is unsuccessful in his attempt to procure a decree herein directing the turning over to him of the trust estate and the trust continues, then the rights of the intervenor will be protected under the existing order that the said

First Department, July, 1921.

[Vol. 197 defendant be paid ten per cent of the income from the trust fund payable to plaintiff. If the plaintiff succeeds herein in obtaining possession of the corpus of the trust estate, then the judgment of the respondent will certainly be good, and its rights may be amply protected through adequate means provided by law for the enforcement of the lien of its judgment against the plaintiff.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion of the defendant, appellant, be granted, with ten dollars costs.

CLARKE, P. J., LAUGHLIN, DOWLING and GREENBAUM, JJ.,

concur.

Order reversed, with ten dollars costs and disbursements, and defendant, appellant's motion granted, with ten dollars costs.

JOHN DEVOY, Appellant, v. WALTER NELLES, Respondent. First Department, July 1, 1921.

Interpleader-notice of application for order same manner as summons personal action

must be served in action for money

had and received — jurisdiction of non-resident cannot be obtained by service of notice of application for order of interpleader outside of State.

A notice of an application for an order of interpleader under section 820 of the Code of Civil Procedure has somewhat the effect of, and must be served in the same manner as, a summons.

In a personal action brought upon the theory of money had and received, jurisdiction of a non-resident cannot be acquired by service of a notice of an application for an order of interpleader outside the State either personally or by substitution.

APPEAL by the plaintiff, John Devoy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of May, 1921, substituting as defendants one Hugh Montague as treasurer of an unincorporated association of more than seven persons known as the Clan Na Gael, and New York Volks-Zeitung, a domestic corporation," in the place and stead of the defendant Walter Nelles.

App. Div. 628]

First Department, July, 1921.

John Delahunty of counsel [J. J. Kirby with him on the brief], for the appellant.

Murray C. Bernays of counsel [Hale, Nelles & Shorr, attorneys], for the respondent.

GREENBAUM, J.:

The action is brought to recover the sum of $5,000 upon the theory of money had and received by the defendant to the use of the plaintiff.

Section 820 of the Code of Civil Procedure requires that notice of the application for an order of interpleader shall be given to the claimant and the adverse party.

The affidavits of service of the notices on the alleged claimants do not state where either of them was served. The obvious purpose of such a notice is to bring the claimant before the court and give him an opportunity to assert his claim. It has somewhat the effect of a summons and must be served in the same manner as a summons is required to be served.

The affidavit of defendant shows that he wrote to the claimant, treasurer Hugh Montague, addressing him as residing at 127 Autumn street, Passaic, N. J., and that Montague in making answer to that letter refers to his place of business as at No. 1 Montgomery street, Jersey City, N. J. The presumption which was conceded upon the argument is that Montague was served in the State of his residence. In our opinion there was no proof of a valid service upon the alleged claimant Clan Na Gael.

The court cannot acquire jurisdiction by service of the notice on a non-resident outside the State, either by personal service, or by substituted service, and such service is not a compliance with the requirement as to notice of section 820 of the Code.

In Bullowa v. Provident Life & Trust Co. (125 App. Div. 545) the court said (at p. 548): "The Code requires notice to the party to be brought in and does not leave it to the court to prescribe what that notice shall be. It necessarily follows that it must be personal notice or the equivalent thereof, and it needs the citation of no authorities to show

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