made with the intent mentioned in the law, is, within the meaning of section 34 of the Penal Code in its relation to sections 552 and 553 of the Penal Code, an act. It is, moreover, an act tending to effect the commission of a crime, namely, the crime of extortion. To require further particulars would be to require a pleading of evidence. Some of the threats set forth in the indictments are concededly within the meaning of the law, or, more strictly speaking, are not attacked by the defendant as not being within the meaning of the law; and, if the threats assailed upon the argument and in the briefs as not being within the letter of the law are regarded as properly assailed, the allegations respecting them in the indictments may be considered surplusage and, as such, as not vitiating the indictments, and the indictments may be sustained on the allegations of other threats of a character not attacked by the defendant.

No opinion is expressed herein as to whether any of the threats mentioned in the indictments are open to the criticism passed upon them by the defendant, for the reason that, in the view taken, the question is not necessary of decision. It may become a question for decision upon a trial, in connection with the reception of evidence and otherwise, in the event that a trial of issues of fact is had upon these indictments. A careful perusal of the indictments leads to the conclusion that they are good as against the demurrers interposed. See Code Cr. Proc. §§ 275, 276, 284, 321, 684.

The demurrers are, therefore, disallowed.

Demurrers disallowed.

(60 Misc. Rep. 20.)

DREW v. CASS.

(Orange County Court. June, 1908.)

JUSTICES OF THE PEACE-JURISDICTION.

A justice of the peace has no jurisdiction of an action between two nonresidents.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 143–145.]

Appeal from Justice Court.

Action by Edsall W. Drew against Vernon D. Cass. Judgment for plaintiff before a justice, and defendant appeals. Reversed.

Clifford S. Beattie, for appellant.

E. V. Sanford, for respondent.

SEEGER, J. This action was brought to recover for breach of warranty on the sale of cows by the defendant to the plaintiff. The contract was made in the town of Warwick, in the county of Orange. Neither of the parties, plaintiff or defendant, is a resident of the state of New York. The plaintiff is a resident of the state of New Jersey, and the defendant is a resident of the state of Pennsylvania. The summons was served in the town of Warwick. Upon the return of the summons, the defendant appeared specially and objected to the jurisdiction of the court, and for that purpose proved the nonresidence of

and 146 New York State Reporter

the parties as above stated, and moved that the summons be dismissed upon the ground of the nonresidence of the parties. The motion was denied, and the defendant excepted, whereupon plaintiff made his complaint, and the defendant answered. Jury trial was had, and the jury rendered a verdict in favor of the plaintiff for $31, whereupon the justice rendered a judgment for that amount, with costs, from which judgment an appeal was taken by the defendant to this court. It was stipulated between the parties that the question of the jurisdic tion of the justice should be decided, and, if decided adversely to the defendant, and a new trial granted, the case should go over the term.

The single question presented to the court is whether a civil action can be maintained in a justice's court in a town in this state, where the sole plaintiff and sole defendant are both nonresidents of the state of New York. It is provided in section 2861 of the Code of Civil Procedure that:

"A justice of the peace has such jurisdiction in civil actions and special proceedings as is specially conferred upon him by statute, and no other."

It is provided in section 2869 of said Code that:

"An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases: (1) Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. (2) Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs when all are nonresidents thereof. it must be brought in the town where the defendant resides, or in any adjoining town thereto. (3) Where the defendant is a nonresident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. (4) Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offense was committed, or where property is found."

The parties to this action do not come within the general provision of section 2869, nor within either of the exceptions mentioned in the subdivisions of said section. It seems to me quite plain, therefore, that the court has no jurisdiction, and that the judgment must be reversed, with costs.

Judgment accordingly.

(128 App. Div. 200.)

BRADLEY v. KRUDOP.

(Supreme Court, Appellate Division, Second Department. October 16, 1908.) WILLS-ESTABLISHMENT-ADMISSION OF FOREIGN WILL TO RECORD-STATUTORY

PROVISIONS.

Code Civ. Proc. § 2703, provides that a copy of a foreign will or record thereof may be recorded in the office of the surrogate of any county in the state where real property devised by the will is situated, if the will is "duly executed in conformity with the laws of this state." Held, that it is enough if it appears in some way from the foreign record that it was "executed." not probated, in conformity with the laws of New York, and the full evidence required by statute to prove the execution of the will for probate in a Surrogate's Court of New York is not required.

Submission of controversy between Daniel Bradley and Herman H. Krudop. Judgment for plaintiff.

The question is whether the plaintiff is seized of a good title to real estate in Kings county which the defendant has entered into a contract to purchase of him. Such title comes through the will of J. Cutter Fuller. He was a resident of the state of New Jersey, and his will was admitted to probate and recorded there, and a copy of such probate record was recorded in the office of the surrogate of Kings county.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

Charles C. Suffren, for plaintiff.

Charles Foley, for defendant.

GAYNOR, J. The sole question is whether the record in the office of the surrogate of Kings county of a copy of the record of the will. of Fuller and of the proofs thereof in the office of the New Jersey probate court is presumptive evidence of such will and the execution thereof, as is provided by section 2703 of the Code of Civil Procedure. It is claimed by the defendant that it is not, for the reason that such record shows that only one of the two subscribing witnesses to the will was examined by the said New Jersey probate court to prove the execution of the will. This objection is untenable. The said Code section provides that a copy of the foreign record may be recorded in the office of the surrogate of any county in this state where real property devised by such will is situated when such will is "duly executed in conformity with the laws of this state," and that such record "shall be presumptive evidence of such will and of the execution thereof." It does not prescribe the evidence which shall be necessary to make it appear, or be sufficient proof, that such will was executed in conformity with the laws of this state. It does not require that the foreign record shall show that two witnesses to the will were examined in the foreign probate court, or that any such witness was examined. On the contrary, it provides for the recording of the foreign record here even though it does not show the examination of any such witness. The requirement is only that the will was executed in conformity with the laws of this state, and if the foreign record contains any evidence

112 N.Y.S. 39

and 146 New York State Reporter

of that fact it suffices. If it does not, the record of it here is a nullity, unless evidence dehors may be supplied on the application for the recording of it here. It must affirmatively appear in some way that the will was so executed. In the present case the foreign record contains the examination of one of the witnesses to the will, and his testimony shows that the will was executed in conformity with the laws of this state. That sufficed for the recording of the foreign record here, and to make such record here presumptive evidence of such will and of the execution thereof.

The contention of the defendant is that since our statute requires that at least two witnesses to a will be examined by the surrogate in order to admit it to probate in this state, and prescribes the evidence which shall be taken instead where one or more of the witnesses is dead, absent from the state, or incompetent from any cause, so that two cannot be examined (Code Civ. Proc. §§ 2618-2620), the same course must be followed by a foreign court in order that a copy of its record of the will and proofs may be recorded here. But no such condition is prescribed by section 2703. It is enough that it appear in some way by the foreign record-by the will and the evidence taken on the probate (if the record show the evidence), by either or by both— that it was executed in conformity with the laws of this state. The full evidence required by statute to prove the execution of a will for probate in a Surrogate's Court in this state is not required to prove its execution for admission in evidence in our other courts. The evidence of one witness to it, or any evidence sufficient at common law to prove its execution, suffices. There is nothing in section 2703 from which to deduce an intention of the Legislature to admit to record in this state the foreign probate record of wills only where such record shows that the proofs were given on the probate which are required on a probate here; in other words, to limit the recording of such records here to states which follow our way of probating wills in respect of the evidence required for probate. On the contrary, it permits the recording of such foreign records here even though it do not appear by them that any witness to the will was examined. The only requirement is that it appear that the will was "executed" -not probated-in conformity with the laws of this state. Whether the record of the will itself, with an attestation clause complying with our statute, as probated in another state or country, would suffice to show that, it is not necessary to now decide, for the evidence of the witness to the will who was examined shows it.

There is no controlling decision in this state to the contrary of the foregoing. In a number of cases where only one witness was examined it did not appear from his testimony, or from the attestation clause, that the witnesses signed at the request of the testator, and it was therefore held that the record did not show that the will was executed in conformity with the laws of this state. Lockwood v. Lockwood, 51 Hun, 337, 3 N. Y. Supp. 887, 2 L. R. A. 435; Estate of Langbein, 2 Civ. Proc. R. 226; Estate of Schearer, 1 Civ. Proc. R. 455; Matter of Nash, 37 Misc. Rep. 706, 76 N. Y. Supp. 453. In the Matter of the Will of Hagar, 48 Misc. Rep. 43, 96 N. Y. Supp. 96, the surrogate

decided that the record of a will proved in the probate court of another state by the testimony of only one of the witnesses should not be recorded in this state, and in the case of Matter of the Will of Coope, 53 Misc. Rep. 509, 103 N. Y. Supp. 431, the contrary was held. When the opinions, and the dissenting opinion, in the case of Meiggs v. Hoagland in its three trials and appeals (68 App. Div. 182, 74 N. Y. Supp. 234; 80 App. Div. 632, 80 N. Y. Supp. 1140; 41 Misc. Rep. 4, 83 N. Y. Supp. 603, affirmed without opinion on appeal) are perused in the light of the point actually involved in that case, it does not seem easy to say that any point of law was settled thereby.

Judgment for the plaintiff.

Judgment for plaintiff on submission of controversy, with costs. All concur.

ANGUS v. COMPTROLLER OF STATE OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. October 16, 1908.) TAXATION-TRANSFER TAX-PARTIES LIABLE-WIDOW OF ADOPTED SON OF TESTATOR-"WIDOW OF A SON."

Transfer Tax Law (Laws 1896, p. 869, c. 908) § 221, as amended by Laws 1905, p. 829, c. 368, provides that, when property of the value of less than $10,000 passes by any such transfer to or for the use of any wife or widow of a son, such transfer of property shall not be taxable. Held, that the widow of an adopted son, who under Domestic Relations Law (Laws 1896, p. 227, c. 272) § 64, was a son of the testator, with all the results which that relation implies was the "widow of a son," within the meaning of the

act.

Appeal from Order of Surrogate, Rockland County.

In the matter of the transfer tax on the estate of William Duryea, deceased. From an order of the surrogate of Rockland county, Catherine W. Angus, formerly Catherine W. Duryea, appeals. Reversed, and order modified.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

John N. Blair, for appellant.

Thomas H. Lee, for respondent.

RICH, J. This appeal presents a single question, viz., is the widow of an adopted son the "widow of a son" within the meaning and intendment of those words as used in the transfer tax law? Section 221 of that law (Laws 1896, p. 869, c. 908), as amended by chapter 368, p. 829, of the Laws of 1905, provides:

"When property real or personal or any beneficial interest therein, of the value of less than ten thousand dollars, passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter * * such transfer of property shall not be taxable under this act; if real or personal property, or any beneficial interest therein, so transferred is of the value of ten thousand dollars or more, it shall be taxable under this act at the rate of one per centum upon the clear market value of such property."