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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

lieb Lenz, which he offered in evidence. This was objected to as incompetent, irrelevant and immaterial. He further testified under objection that he had sent his letter to Mr. Lenz, to the address stated in the contract. The objection was overruled under exception and the letter was admitted. It reads: "Received your letter 18th inst and would have paid for the books, but my ad was not in as I order it.” It is insisted that the court erred in admitting it without putting in the whole correspondence. The letter was competent as an adınission of the defendant, and the plaintiff was not bound to read in the whole correspondence. (Stone v. Sanborn, 104 Mass. 319; Barrymore v. Taylor, 1 Esp. 326.) Of course the defendant might have introduced any correspondence bearing on the subject-matter of the letter. (Rouse v. Whited, 25 N. Y. 170.)

The learned counsel for the appellant further contends that inasmuch as the letter denied that the plaintiff fulfilled its contract, it defeats the plaintiff's case for the reason that the plaintiff cannot impeach his own witness. The letter tended to establish the delivery and the receipt of the books. Of course, as an admission, it must be taken in its entirety. But even if the plaintiff had called the defendant as his own witness he would not have been bound by his answer, for though he could not impeach he could contradict him. (Becker v. Koch, 104 N. Y. 394.) Moreover, the statement of a reason by the writer for non-payment is not proof of facts alleged as the basis of the reason.

The plaintiff is a foreign corporation. Its certificate of authority to do business was not obtained until 1902. This contract was made in 1900. The point is made that the company was prohibited from doing business by sections 15 and 16 of chapter 687 of the Laws of 1892, as amended by chapter 538 of the Laws of 1901. Section 15, before such amendment, in part provided : “No foreign stock corporation doing business in this State without such certificate shall maintain any action in this State upon any contract made by it in this State until it shall have procured such certificate.” In Neuchatel Asphalte Co. v. Mayor (155 N. Y. 373) it is held that a corporation, upon obtaining the certificate, could enforce a contract made after the passage of the law and before procuring the certificate. The amendment of 1901 reads : “No foreign stock corporation doing business in this State shall maintain any action in this State upon

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. any contract made by it in this State unless prior to the making of such contract it shall have procured such certificate.” If this provision, enacted subsequent to the making of the contract in this case, be read as retroactive, then it is vicious as impairing the obligation of such contract. (People ex rel. Reynolds v. Common Council, 140 N. Y. 300, 307.) But such construction of purview is not required. The further provision of section 15 : “No such corporation now doing business in this State shall do business herein after Decernber 31, 1892,” is supplemental to the general provision, and by its terms is plainly limited to corporations then doing business at the time of the passage of the act in 1892, and refers to contracts then existing.

The judgment should be affirmed, with costs.
BARTLETT, WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred.
Judgment of Municipal Court affirmed, with costs.

In the Matter of the Application of DANIEL R. Case, Respondent,

v. Harold E. SPENCER, Administrator with the Will Annexed of the Estate of L. R. Bacon, Deceased, Appellant.

Surrogate jurisdiction of, to order securities, found by an administrator in his

decedent's safe deposit vault, to be delivered over to one claiming ownership thereof - proof that the administrator, as such, holds the securities Code of Civil Procedure, section 2472, subdivisions 3 and 4, is not applicable to such a case.

The Surrogate's Court has no jurisdiction to require an administrator, upon a

summary application, to deliver money or securities, which have come into his hands as part of the assets of the decedent's estate, to a person who claimed that such money and securities were deposited by him with the decedent for safekeeping, even though the administrator does not seriously contest the

applicant's ownership of the property in question. Subdivisions 3 and 4 of section 2472 of the Code of Civil Procedure do not apply

to such a case. An admission by an administrator that he "found” certain securities in bis

decedent's safe deposit vault is sufficient to warrant the conclusion that his possession of such securities was in his capacity as administrator.

APPEAL by the defendant, Harold E. Spencer, administrator with the will annexed of the estate of L. R. Bacon, deceased, from

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. an order of the Surrogate's Court of Westchester county, entered in said Surrogate's Court on the 16th day of May, 1903, directing said defendant to deliver to the respondent herein certain property in his possession.

Arnold Charles Weil [Robert Weil with him on the brief], for the appellant.

Edward Stephens and John R. Davies, for the respondent. JENKS, J.:

The petitioner shows that he deposited with Bacon for safekeeping certain securities and money, both returnable upon demand ; that, upon Bacon's death, Bacon's administrator, c. t. a., the respondent, took possession of them, collected the dividends thereof, and, notwithstanding a demand, refuses to deliver up securities, money or dividends. The respondent deposes that he has no knowledge or information sufficient to form a belief as to the allegations of deposit or its terms, denies that he has taken possession of the securities or that they have come into his possession as alleged, deposes that he “found” certain securities in the safe deposit vault of the decedent which he now holds, admits that he has collected dividends upon some of them, and states that certain other securities stand hypothecated by the decedent for loans to him. The securities described by the respondent conform to the securities described by the petitioner. The respondent also deposes that it appears upon examination of the decedent's books and from information received by him, that the securities named by the petitioner were received from petitioner by decedent, and also that the books of decedent show an indebtedness to petitioner corresponding to the alleged deposit of money. And finally, he deposes that the decedent had no claim or lien thereon or claim against the petitioner. Affidavits of the attorneys for the respective parties were also submitted.

Thereupon the surrogate ordered the adıninistrator forth with to deliver up all such securities in possession to the petitioner, and to notify all parties in interest to show cause before the surrogate why the administrator should not redeem the hypothecated securities and return them to the petitioner with the said money and dividends, together with interest on such amounts respectively.

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. The power of the surrogate in the premises must be found in expression or implication of some statute. (Riggs v. Cragg, 89 N. Y. 479; Fiester v. Shepard, 92 id. 251; Matter of Hawley, 104 id. 250 ; Matter of Walker, 136 id. 20.) If the respondent did not take or does not hold or control the securities in his

representative capacity, then clearly the Surrogate's Court had no jurisdiction. If, on the other hand, the relation of the respondent is in his representative capacity, the question of power still remains.

Despite the denials and distinctions of the respondent, I think the facts presented warrant the conclusion that the respondent acted and acts in the capacity of administrator. He obtained and he has kept possession of the securities not hypothecated. Personally he makes no claim of title thereto save the inference to be drawn from his denials and from his averment that he “found” the securities. To find is to discover or to meet with by accident. It implies a loss. The petitioner did not lose the securities if he knowingly deposited themn with Bacon. There is no presumption that Bacon lost them, arising from their discovery in his safe deposit box. They were only found in the sense that after Bacon's death a third person then gained access to a place where such instruments would most naturally be kept. Surely because the decedent left them behind him, he did not lose them, and because the respondent discovered them in a strong box which had belonged to the decedent, he did not find them. Otherwise, almost every executor and administrator would be a “finder” of property. It is idle to speculate how long, before any sensible tribunal, the respondent could maintain his title as a finder to securities discovered in the decedent's strong box, in the face of his own admission and of petitioner's proof. (See 2 Pars. Cont. [8th ed.] 103; McLaughlin v. Waite, 9 Cow. 670.) On the other hand, it appears that the respondent is administrator of the alleged depositary; that he admits the receipt by him ; that he found the securities, not hypothecated, in a safe place belonging to the decedent, and to which, presumably, he could have no lawful access save as his representative; that he received dividends from some of the securities standing in the name of the decedent and his company, and that he described them as “ assets.”

The difficulty in the way of affirmance of this order is not in the determination of the capacity of the respondent, but in discovering

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App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. the power of the Surrogate's Court to make it. Redfield on Surrogates (6th ed. p. 36) says: "He (the surrogate) cannot, however, on a summary application compel an administrator to deliver to a claimant property taken possession of as part of the estate," citing Marston v. Paulding (10 Paige, 40); Thompson v. Mott (5 Redf. 574). In Marston v. Paulding (supra), the chancellor, affirming an order of the surrogate denying an application essentially similar to that in this case, said: “It is not necessary to examine the question whether the property in controversy in this case was or was not rightfully retained by the respondents as a part of the estate belonging to the decedent. For if it belonged to the appellant his proper remedy was in a different forum. For the surrogate has no jurisdiction upon a summary application to hiin to compel the administrators to deliver over property to the owner thereof, which property has been taken possession of by them as a part of the estate to be administered by them, although their claim to such property is wholly unfounded, or is merely colorable.” (See, too, Matter of Cooley, 6 Dem. 77.) I find no counter authority, and I neither find nor am I referred to any statute save subdivisions 3 and 4 of section 2472 of the Code of Civil Procedure. I think that these provisions are not sufficient in the premises. The power conferred by subdivision 3 to direct and to control can be exercised only “in the cases and in the manner prescribed by statute.” (Thompson v. Mott, 1 Dem. 32.) As to subdivision 4, the petitioner claims neither a debt nor a legacy, nor that the property in the respondent's possession belongs to the estate of the decedent. On the contrary, he claims his own property which was deposited with the decedent to be by him returned upon demand. It does not appear that the respondent ever had possession of the hypothecated securities, but the order requires him, as administrator, first to redeem them. If he redeem them as administrator in order to deliver them to the petitioner, it wonld seem that he would take possession of them as such administrator. If not, I know of no equitable power in the surrogate which would warrant such order. As to the money, the petitioner does not lay claim thereto as a debt, but as a deposit returnable upon demand. I think that the Code provisions cited (supra) cannot be construed, in the absence of any more specific statutory authority, as vesting the surrogate with such equitable or common-law power

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