the title without infringing the comity of nations. But it is impossible to recognize a government and yet claim to exercise jurisdiction over its person or property against its will."

In the words of Chief Justice Marshall (United States v. Percheman, 7 Pet. 51-86, 8 L. Ed. 604):

"It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed."

[7] It is my opinion that the defendant is not entitled to immunity from suit, it is a foreign corporation aggregate, and as such, for the time being because it is representing the people of Russia, it is a legal entity, for whose acts the nation is responsible. Like a foreign corporation which has failed to comply with the requirements of the General Corporation Law (Consol. Laws, c. 23) and the Tax Law (Consol. Laws, c. 60), it cannot sue in our courts, but may be sued (Howden & Co., Inc., v. American Condenser & Engineering Corp., 194 App. Div. 164, 185 N. Y. Supp. 159, affirmed 231 N. Y. 627, 132 N. E. 915). The order must be affirmed, with $10 costs and disbursements. All

concur.

YOUNGS v. HERBERT et al.

(Supreme Court, Appellate Division, First Department. July 14, 1922.) Deposits in court 8-Warrant void on face held not to protect city chamberlain making payment thereon from liability.

Under Greater New York Charter, § 197, providing that no money placed in the custody of the court shall be surrendered without the production of a properly certified copy of an order of the court, in whose custody the money was placed, duly made and entered, directing the disposition, where the chamberlain of the city of New York had custody in the name of a married woman of a portion of an estate to be held subject to an order of the court, an ex parte order, obtained by the husband of the woman after her death, without notice to the administrator of her estate, to pay to him the fund in question, was void for lack of jurisdiction over the administrator, and, since it recited the death of the woman to whom the money was due, its defect was apparent on its face, and payment in accordance therewith afforded no protection to the chamberlain in a suit by the administrator to recover the fund.

Appeal from Special Term, New York County.

Action by William H. W. Youngs against Philip Berolzheimer, as Chamberlain of the City of New York, with Walter G. Herbert, as ancillary administrator, impleaded. From an order denying the application of Walter G. Herbert, ancillary administrator of the estate of Louise Montes, deceased, for an order directing Philip Berolzheimer, Chamberlain of the City of New York, to pay to him certain

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(195 N.Y.S.)

sums of money, he appeals. Order reversed, and motion for an order directing the City Chamberlain to pay over, as prayed for by the petitioner, granted.

See, also, Youngs v. Goodman, 199 App. Div. 281, 192 N. Y. Supp. 3.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.

Harry M. Lewy, of New York City, for appellant.

John P. O'Brien, Corp. Counsel, of New York City (Henry J. Shields, of New York City, of counsel, and John F. O'Brien and Walter B. Caughlan, both of New York City, on the brief), for respondent.

GREENBAUM, J. The motion was predicated upon a certificate of the chamberlain of the city of New York, dated January 6, 1921, to the effect that at that date he held to the credit of Louise Montes in the above-entitled action, the sum of $1,628.99.

The facts are that George W. Adams, prior to 1912, died intestate, seized of a number of pieces of real property in the city of New York, and leaving only collateral heirs. Among the defendants in the partition action which followed were Harry E. Montes and Louise Montes, his wife, who then were and thereafter continued living separate and apart. In the final judgment Harry E. Montes was adjudged to be entitled to a share of the proceeds of said partition action, namely, a 756/21168 part, less a gross sum due his wife in lieu of her right of dower.

The proceeds of the partition action were deposited with the chamberlain of the city of New York, to be held by him until the further determination and order of the court. Pursuant to the terms of the final judgment, Harry E. Montes petitioned the court to direct the chamberlain to pay to him and to Louise Montes, his wife, the respective sums due them thereunder. Thereupon, and on July 22, 1912, an order was entered directing the chamberlain of the city of New York to pay, among others, as follows: To Harry E. Montes, $5,687.76; to Louise Montes, his wife, $1,638.81 (sic).

It is undisputed that, by reason of the aforementioned order, the chamberlain paid to Harry E. Montes the amount to which he was entitled, and that his wife never received the share apportioned to her, nor had she applied therefor. Louise Montes died in Bergen county, N. J., August 6, 1920, without having in any way disposed of her share. Walter G. Herbert, her brother, was on January 4, 1921, appointed administrator of her estate by the surrogate of Bergen county, state of New Jersey, and on March 27, 1922, he was appointed ancillary administrator in the Surrogate's Court, New York County.

On January 29, 1921, Harry E. Montes, through his attorney, presented his verified petition to Special Term, Part II, Supreme Court, County of New York, and obtained an ex parte order, wherein and whereby the order of July 22, 1912, was amended by directing the chamberlain of the city of New York to pay to Harry F. Montes the

sum of $1,623.99, instead of to Louise Montes. Thereupon the chamberlain paid the sum of $1,628.99 to Harry E. Montes. On June 20, 1921, Walter G. Herbert, as administrator of the estate of Louise Montes, duly moved at Special Term, upon notice, for an order to set aside, vacate, and declare void the order of January 29, 1921. The motion was denied, and on appeal this court reversed the order and in all respects granted the motion. 199 App. Div. 281, 192 N. Y. Supp. 3. Leave to appeal to the Court of Appeals from the order of reversal was denied, both by this court and the Court of Appeals. The opinion of this court, Dowling, J., writing, pointed out that the court in the partition action had fixed the value of the inchoate right of dower of Louise Montes, pursuant to section 1570 of the Code of Civil Procedure, as prayed for by her husband, and stated:

"Acting under this section, the court fixed the proportional value of the inchoate right of dower of Louise Montes at the sum of $1,638.81 and directed its payment to her out of the total amount awarded to her husband. That amount thus became her own property, absolutely and without condition or contingency. Bartlett v. Van Zandt, 4 Sandford's Chancery Reports, 396; Robinson v. Cazero, 138 N. Y. 425."

As matter of fact the administrator of the estate of Louise Montes had been appointed as such 25 days before Harry E. Montes applied for the ex parte order authorizing the city chamberlain to pay over to him the moneys set apart for his wife. The administrator was entitled to the possession of the fund deposited with the city chamberlain in the name of the intestate, and should have had notice of the application for the order authorizing the chamberlain to pay the share of Mrs. Montes, to her husband. The learned Special Term justice who denied the motion under review relied upon Matter of McNulty, 68 Misc. Rep. 93, 123 N. Y. Supp. 1070 (affirmed 144 App. Div. 894, 123 N. Y. Supp. 1133) and People ex rel. Morris v. Randall, 73 N. Y. 416.

The chamberlain is a ministerial officer, who is custodian of moneys on deposit subject to the order of the court by virtue of section 197 of the Greater New York Charter, which provides:

"No money, security or other property which shall have been placed in the custody of the court shall be surrendered without the production of a properly certified copy of an order of the court, in whose custody said money, security or other property shall have been placed, duly made and entered, directing such disposition." (Italics ours.)

The order presented to the chamberlain was not "duly made." On the face thereof it appeared that the party to whose credit the moneys in question were deposited had died and that her legal representative had not been given notice of the application for said order.

In the McNulty Case, supra, it appeared that the city chamberlain had moneys in his hands which had been deposited for the benefit of one Catharine McNulty, an infant. Subsequently a petition was presented to the court, purporting to be signed by Catharine McNulty, the owner of the funds, accompanied by affidavits that the petitioner was the identical infant named in the proceeding in which the money

(195 N.Y.S.)

was paid into court and that she was of full age. Thereupon and on the 13th day of May, 1904, an order was entered by the court— "directing the chamberlain to pay to Catharine McNulty or her attorney the moneys in his hands to the credit of the petitioner."

In June, 1910, one Catharine McNulty Carroll sought to have the order of May 13, 1904, vacated, asking for "an order directing the present city chamberlain to pay to her all moneys alleged to have been deposited to her credit with him in this matter, on the ground that she is the identical person named as Catharine McNulty, infant, in this proceeding and that the moneys deposited to her credit have never been paid to her," alleging that the signature of Catharine McNulty affixed to the petition of May 11, 1904, was not hers, and that she had never signed any affidavit or legal document for the purpose of acquiring moneys deposited with the city chamberlain.

The "present chamberlain," above referred to, only entered upon his duties of office on January 4, 1910, and hence was not the chamberlain who had received the money originally and paid it out under the order of May 13, 1904. It would have been sufficient on that state of facts for the court to deny the motion, upon the ground that the then city chamberlain could not be compelled to pay out moneys which had never come into his custody. It follows that so much of the opinion in the McNulty Case as held that the former chamberlain was protected in paying out the infant's share under the order of May 13, 1904, was purely obiter.

In the case of People v. Randall, supra, a fund was on deposit with the chamberlain of the city of New York by order of the court to the credit of the action of Hiler v. Hetterich, for the benefit of the plaintiff, Hiler. Thereafter Hiler transferred his interest in the fund to one Haight in trust to pay the expenses and disbursements growing out of the trust and also to pay certain specified creditors of Hiler. Haight accepted the trust, and after a short time he resigned his trust in favor of one Dusenbury. Judgment having been obtained against Hiler by one of his creditors, an execution was issued against him and returned unsatisfied, and thereafter supplementary proceedings were taken containing the usual injunctive clause restraining him from transferring his "property or in any manner interfering therewith until further order" of the court. At the conclusion of the proceedings. a receiver of the property of Hiler was appointed. In this condition of affairs one Randall, who nominally acted as attorney for Dusenbury, the trustee, procured an ex parte order directing the chamberlain to pay said fund to the trustee. This order was obtained by Randall without disclosing to the court the facts as to the restraining order above mentioned or of the appointment of a receiver. The question before the court was whether the attorney was subject to punishment for contempt of court for his conduct in thus obtaining the order. In the course of its opinion the court said:

"The order restraining the chamberlain was a mere preliminary or intermediate order. It was not intended to be, and could not be, permanent. It was in terms to continue only until further order in the premises.'"

The court also held that the chamberlain had the right to pay the funds, for the reason that the

"order of the Court of Common Pleas of January 7, 1874, ordering him to pay the fund, is a sufficient protection to him. He had nothing to do with its procurement, and was in no way responsible for the manner in which it was procured. As to him it was a valid order, and superseded the prior restraining order made by the same court."

It is to be observed that the court did not have before it the question of the rights of a person in whose behalf the money was deposited with the chamberlain, but simply the question as to the effect of the order which relieved the chamberlain from the prior injunction which had been obtained against him.

The order of January 29, 1921, which was obtained without notice to the administrator of Louise Montes, recites the death of Louise Montes on August 6, 1920, at Hackensack, Bergen county, state of New Jersey. It seems to us that the court making the order of the 29th of January, 1921, was without jurisdiction so far as the administrator was concerned. The moneys in question were deposited with the city chamberlain in the name of and to the credit of Louise Montes, who during her lifetime was the owner thereof, and upon her death her interest went to her legal representatives. The procurement of the order, without notice to her legal representatives after her death, disposing of her property without the knowledge or consent of her administrator, was not due process of law. The court did not acquire any jurisdiction over the administrator of the deceased, Louise Montes, in the absence of notice to him, and hence the order was void. In Day v. Bach, 87 N. Y. 56, at page 60, the court, discussing the effect of void and voidable orders, stated:

"There can be no doubt of the general principle that void or irregular process furnishes no justification to the party for acts done under it, with this limitation: That if the process is irregular only, so that it is merely voidable, and not void, it must be set aside or vacated before trespass can be brought. On the other hand, it is equally well settled that, if the process was erroneous only, it protects the party for acts done under it while in force, and he may justify under it after it has been set aside."

The opinion also states:

"The authorities seem to establish these propositions: First, that a void writ or process furnishes no justification to a party, and he is liable to an action for what has been done under it at any time, and it is not necessary that it should be set aside before bringing the action (Brooks v. Hodgkinson, 4 Hurlst. & N. 712); second, if the writ is irregular only, and not absolutely void, as, for instance, where an execution is issued on a judgment more than a year old, without a sci. fa., no action lies until it has been set aside, but, when set aside, it ceases to be a protection for acts done under it, while in force [citing cases); third, if the process was regularly issued, in a case where the court had jurisdiction, the party may justify what has been done under it, after it has been set aside for error in the judgment or proceeding, and an action for false imprisonment, in case of arrest, or of trespass for property taken under it, will not lie."

The order under which the chamberlain paid the money to Harry Montes was void in its inception and afforded no protection to the chamberlain.