FIRST DEPARTMENT, OCTOBER TERM, 1887. decision made in Cromwell v. Hull (97 N. Y., 209), and the weight to which that case is entitled in this action is not materially diminished by the fact that the action which was then decided proceeded under the provisions of the Revised Statutes; for in that respect those statutes gave the same effect to a final decree in partition as these provisions now do, which are contained in the Code. (2 Rev. Stat. [Edm. ed], 340, § 84; Id., 336, 337, §§ 60, 61.) Under the provisions of those statutes only a joint tenant or tenant in common was authorized to maintain an action for the partition of real estate. (Id., 326, § 1.) And that by implication forbade the action to be brought by a tenant by the curtesy as completely, though not expressly, as section 1538 of the Code of Civil Procedure. There is no substantial difference in these statutes, and this decision accordingly is binding upon the parties to this action. And since it was made it has been followed in Woodhull v. Little (102 N. Y., 165). And in principle it is likewise confirmed by Abbot v. Curran (98 N. Y., 665). The case of Scheu v. Lehning (31 Hun, 183), stands no way in conflict with this rule, for there it was not made to appear that final judgment confirming the sale had been rendered. In the absence of such confirmation the court would not require the purchaser to take the title, who urged the existence of such an objection. For the law entitles every purchaser of real estate under a judgment in partition, to a title which will be reasonably free from doubt or dispute. The summons and complaint were served upon the infant defendants as that was required to be done by section 130 of the Code of Civil Procedure, and as they were each under the age of fourteen years, the guardian ad litem was legally appointed for them the next day after the summons and complaint were served by the court acting under the authority of section 471 of the Code. And the omission to require a bond from the guardian in favor of each of the infants, did not divest the court of the jurisdiction it had acquired over them in this manner. Even if a several bond should have been required in favor of each of the infants, the omission to direct it to be given, and permitting one bond for their joint as well as several benefit, was no more than an irregularity which cannot now be made the subject of objection or complaint by the purchaser. (Croghan v. Livingston, 17 N. Y., 218.) In that case the court held that the omission to file the bond required, was no more than an 46 216 138a 222 46 216 152a 204 FIRST DEPARTMENT, OCTOBER TERM, 1887. irregularity which was afterwards amendable by the court. And an offer has been made to correct any irregularity in the form of this bond, by executing and filing a bond in favor of each one of the infants if that should be exacted by the purchaser. But he has not insisted upon that being done. He accordingly cannot be relieved from his purchase on account of this alleged defect, even if he should be held right in making the objection. The objection that there may be creditors of the estate, having the right to apply for the sale of the property for the payment of their debts, has been answered by the affidavit of one of the defendants, stating that her mother who was the preceding owner of the property, left sufficient personal property to pay all claims against her estate. These are the substantial, as well as formal objections urged in behalf of the purchaser in support of his application to be relieved from the purchase, and as neither of them is legally well founded, it follows that both of the orders from which the appeals have been taken, should be affirmed with ten dollars costs, besides the disbursements. VAN BRUNT, P. J., and BARTLETT, J., concurred. Order affirmed, with ten dollars costs, and disbursements. LOUIS STRAUS AND FRANKLIN B. TORREY, RESPOND- Attachment- when an indebtedness of one foreign corporation to another foreign corporation cannot be seized· -the person or the thing attached must be within this Code of Civil Procedure, secs. 641, 644. State The Commercial Union Insurance Company (limited) of London, a corporation created and existing under the laws of the kingdom of Great Britain, had issued a policy of insurance upon property situated in the city of Chicago and owned by the defendant, a corporation created by and existing under the laws of the State of Illinois. Under this policy a loss had been sustained by fire, affecting the property insured by the policy. In this action, brought against the defendant, the Illinois corporation, the plaintiffs, who reside and carry on business in the city of New York, procured an attachment to be issued, which was served, and the indebtedness of the insurance company to the defendant attempted to be attached, by delivering a copy of it at the office of an agent which the insurance company had, for the transaction of its business in the city of New York. FIRST DEPARTMENT, OCTOBER TERM, 1887. Held, that as the negotiations for the policy took place in the city of Chicago, and it was there delivered to and held by the defendant, the indebtedness was not property which the defendant had within this State and could not be seized under the attachment. Plimpton v. Bigelow (93 N. Y., 592) followed; Myers v. Liverpool, etc., Insurance Company (40 Md., 595) and Willett v. Equitable Insurance Company (10 Abb., 193) distinguished, and cases in other States holding that it could be seized, cited APPEAL from an order denying a motion to set aside the service of an attachment. James Byrne, for the appellant. Henry W. Sackett, for the respondents. DANIELS, J.: The plaintiffs reside and carry on business in the city of New York. The defendant is a corporation created by and existing under the laws of the State of Illinois. It was insured upon its property by a policy issued by the Commercial Union Insurance Company, (limited), of London, a corporation created and existing under the laws of the kingdom of Great Britain. A loss has been sustained by fire, affecting the property insured by the policy, and situated in the city of Chicago. The insurance company had an agency for the transaction of its business in the city of New York and the attachment, which was issued in the action, was served at the office of the insurance company in the city of New York, by delivering a copy of it there with a notice that the indebtedness of the company to the defendant was thereby attached. And a motion was made to set aside this service of the attachment on the ground that the indebtedness could not in this manner be attached under the pro. visions of the Code of Civil Procedure. It will not be necessary to determine whether a lawful attachment of the indebtedness could be made under subdivision 2 of section 649 of the Code of Civil Procedure, without taking actual possession of the policy itself. For this policy was not issued by the New York agency, but the negotiations for it took place in the city of Chicago, and it was there delivered to and held by the defendant. The indebtedness, accordingly, was not property which the defendant had within this State, and under the construction given to the Code of Civil Procedure in Plimpton v. Bigelow (93 N. Y. 592), it could not be seized under this attachment. It is true that the service of the attachment in HUN-VOL. XLVI 28 FIRST DEPARTMENT, OCTOBER TERM, 1887. that case was attempted to be made upon shares of the defendant in the corporate stock of a company, but that circumstance does not seem to render the decision then made inapplicable to this case. By the shares which the defendant held he was entitled to a proportionate part of the earnings of the corporation and of its property upon its dissolution. While in the present case the defendant was entitled under the policy to the payment of so much money as would compensate it for the loss sustained by the destruction of its property by fire, so far as the policy covered such loss. The property itself in each case has several attributes of similitude, rendering the decision in the case referred to applicable to the service made of the attachment in this action. A somewhat similar decision was made in Myer v. Liverpool, etc., Insurance Company (40 Md., 595). But as that passed off on the inability to maintain an action for the recovery of the debt, which it was the object to seize, the decision is not controlling over this case. Where an action may be here maintained to recover the debt owing by the foreign corporation, as it certainly could be in this case, it has been held in other States, that it may be seized by way of attachment or process of garnishment. (Barr v. King, 96 Penn., 485; National Bank, etc. v. Huntington, 129 Mass., 444; McAllister v. Penn. Ins. Co., 28 Mo., 214; Hannibal and St. J. R. R. Co. v. Crane,102 Ill., 249.) And other cases might undoubtedly be added sustaining the same point. In Willett v. Equitable Insurance Company (10 Abb., 193), there was no agency of the company in this State. And the absence of that circumstance is sufficient to deprive the decision then made of its influence over the subject-matter of this controversy. But it is not important to pursue the consideration of other cases since that of Plimpton v. Bigelow (supra), maintains the general proposition that the presence of the person or thing within the State is indispensable to the power of the court to acquire jurisdiction over it in this mannner. The order should be reversed, together with the usual costs and disbursements, and the service of the attachment set aside. VAN BRUNT, P. J. and BARTLETT, J., concurred. Order reversed, with ten dollars cost and disbursements and motion granted. FIRST DEPARTMENT, OCTOBER TERM, 1887. ALFARATA REED, ADMINISTRATRIX OF SARAH LOUISA REED, DECEASED, PLAINTIFF, v. AUGUSTUS CRUIKSHANK, TRUSTEE OF THE ESTATE OF BENJAMIN LORD, DECEASED, DEFENDANT. Annuity having no time fixed for its payment — when apportioned where the annuitant dies between the days of payment. Benjamin Lord, by his will, directed his executors to take possession of all his estate, real and personal, and receive the rents, interests, dividends and income thereof, and out of ths same to keep the real estate in repair and pay the charges thereon, and keep the personal estate invested, and to call in and reinvest the same from time to time, and to divide and pay over the net income to be derived from his store No. 147 Ceder street to Mary Van Vechten, and "out of the residue and remainder of said net income of my said estate to pay to Sarah Louisa Reed, wife of David L. Reed, of the city of New York, it being my intention henceforth, as a daughter, to adopt her, the sum of $2,000 a year during her natural life, on her sole and separate receipt, the same as if she was a femme sole, free from the control, interference or debts of her present or future husband." The annuity was paid to her until the 5th day of July, 1885, and she died on June 7, 1886. It appeared that the said Benjamin Lord died seized of a store, known as No. 423 Broadway which yielded an annual income of $4,750, and that the personal property affected by this provision of the will was about $10,000. Held, that as no time was fixed for the payment of the annuity, and as the rent of the store, in the absence of any statement to the contrary, would be presumed to be payable quarterly, the annuitant would be entitled to call for payment, at least at the expiration of every three months, and that the plaintiff, as ber administratrix, was entitled to recover three-fourths of the annuity, with interest thereon from the time the last quarterly payment could, under this construction of the will, have been demanded. The decisions holding that an annuity, payable at a specified time, is not apportionable, held not to be applicable to this case, where no time for its payment. was stated. CASE agreed upon and submitted pursuant to section 1297 of the Code of Civil Procedure. Among other facts agreed upon were the following: That the said Benjamin Lord was seized in fee, at his death, of certain real estate in the city of New York, known as No. 423 Broadway, and also of another parcel known as No. 13 Rose street, which last mentioned parcel was subsequently taken and appropriated in course of law by the trustees of the New York and Brooklyn bridge for the purposes |