1904, an administrator of her estate appears to have been appointed in Germany. This administrator, one Walter John, appears to have been a lawyer, not related to any of the parties, and the appointment was made without notice to the next of kin, and he filed no security, conditions which would be necessary in the state of New York, and there is nothing before the court to show what the law of Germany is in respect to administration. Upon the basis of these German letters of administration, on the 11th day of May, 1904, the appellant, Anton Schmid, applied for and obtained from the court below alleged ancillary letters of administration for the purpose of reducing to possession the $4,000 legacy to Louise Sprathoff, who concededly owed no debts within the state of New York. On the 22d day of June, 1905, Johanna Ilg, being then a resident of Kings county, applied to the Surrogate's Court of that county for letters of administration, and such letters were duly granted, and she qualified in due form of law as such administratrix. With the records of the court below showing this state of affairs, the executor under the will of Henry Streck fuss instituted proceedings for an accounting, and both these administrators laid claim to the legacy of $4,000. The matter appears to have been fully contested, resulting in a decree, under date of August 24, 1905, awarding the fund to Johanna Ilg, as administratrix of Louise Sprathoff, and no appeal has been taken from that decree, the time for which has long since expired. After the entry of the decree above mentioned, this proceeding was brought to revoke the letters to Johanna Ilg, without taking any steps to avoid or limit the effect of the decree, on the ground of the prior letters to Anton Schmid, and upon a further ground, which appears to have been fully abandoned upon this appeal, and which it does not seem necessary to consider.

In view of the conceded facts in this case, and the provisions of section 2664 of the Code of Civil Procedure, it is evident that it would be contrary to the policy of this state to permit the legacy to Louise Sprathoff to fall into the hands of the appellant, who has not given any surety bonds for the faithful discharge of his duties, and it seems to us that the appellant, by submitting to the determination of the court below in the matter of the accounting, has waived all rights under his ancillary letters. In his petition he makes no suggestion that there is any estate within the jurisdiction of the court aside from the legacy of $1,000, and this sum having been awarded to Johanna ilg, as administratrix of the estate of Louise Sprathoff, and the decree having become final by reason of the appellant having failed to appeal in the accounting proceeding, there is nothing to be determined in this court. The appointment of Johanna Ilg, after letters had been issued to the appellant, was not void, nor was it without jurisdiction (Power v. Speckman, 126 N. Y. 351, 356, 357, 27 N. E. 474); and the question could not have been raised by the appellant on the accounting proceeding. Power v. Speckman, supra. The appellant could not go into that proceeding and submit his rights under his ancillary letters, and then, without appealing from the decree, defeat the rights of the respondent by an independent proceeding. The surrogate had all of the necessary parties before him upon the accounting, and the decree in that proceeding must be final, until it is reversed or vacated

102 N.Y.S.-6

and 136 New York State Reporter

in some manner recognized by our laws; and as the rights of the ancillary administrator depend entirely upon the legacy within the jurisdiction of this court, and as that legacy has been judicially decreed to belong to the administratrix, there is an end of the appellant's rights under his letters, whatever those rights might have been if he had remained away from the accounting proceedings, and had asked in advance of the accounting, or contemporaneously with it, for the relief which he now seeks.

The decree appealed from should be affirmed, with costs. All

concur.

(116 App. Div. 723)

KLOTZ TAILORING CO. v. EASTERN FIRE INS. CO. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) INSURANCE-FIRE POLICY-CONSTRUCTION.

A fire policy provided that the insurer should not be liable for a greater proportion of any loss than the amount insured by the policy bore to the "whole insurance," whether valid or not, "covering such property," etc. Held, that a floating insurance policy covering plaintiff's injured goods. but providing that the policy should not cover in whole or in part any merchandise on which there might be at the time specific insurance, excepting on the excess of value over and above such specific insurance, when such specific insurance was exhausted, did not cover the goods insured by the first policy, and was not to be considered in determining the "whole insurance" on the property at the time of the loss.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, § 1285.]

Submission of controversy on agreed statement of facts by Klotz Tailoring Company against the Eastern Fire Insurance Company. Judgment for plaintiff.

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, GAYNOR, and MILLER, JJ.

Adolph Feldblum, for plaintiff.

Solomon J. Rosenblum, for defendant.

HOOKER, J. This controversy is submitted upon an agreed statement of facts, which, so far as material, is as follows:

Prior to March 24, 1905, plaintiff's merchandise and other supplies at certain premises in Columbus, Ohio, were insured against loss by the defendant to the amount of $932.05. On that day they were wholly destroyed by fire, and were at that time worth the sum of $12,833.79, in which sum plaintiff suffered loss by reason of the fire. The policy issued by the defendant was in the New York standard form provided for by section 121 of the insurance law (chapter 488, p. 720, Laws 1886, as amended by Laws 1892, p. 1980, c. 690); the only clause of which bearing upon this case provides as follows:

"This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy, or of the contribution to be made by this company

in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto."

In addition to the amount of insurance carried with the defendant, the plaintiff at the time of the fire had insurance to the amount of $7,160.25 upon the goods and merchandise destroyed, and had, furthermore, a policy of insurance in the Globe & Rutgers Insurance Company for $50,000, covering goods and merchandise of the plaintiff while contained in any building or premises or yards or streets adjoining the same or while in transit in the United States. The policy of the Globe Company contained this provision:

"It is understood and agreed that this company shall be liable under this policy for an amount not exceeding $10,000 in any one fire. This policy doe: not cover in whole or in part any merchandise on which there may be at the time specific insurance, excepting on the excess of value over and above such specific insurance, when such specific insurance is exhausted."

The plaintiff claims from the defendant the full amount of its policy, $932.05, but the defendant has refused to pay any part thereof, except the sum of $583.87, which was paid by it and accepted by plaintiff, without prejudice, and the plaintiff claims to be entitled to the balance of $348.18.

To maintain its contention the defendant relies upon the provision of the policy issued by it, quoted above, and claims that by reason thereof it is not liable for a greater proportion of the loss than the amount. of its policy bears to the whole insurance covering the plaintiff's property, and that the term "whole insurance" is meant to and does include the insurance provided for in the policy issued by the Globe Company. It asserts that this, the whole insurance, is made up of, first, the defendant's policy, $932.05; second, other specific insurance, $7,160.25; and, third, the floating insurance, or that issued by the Globe Company, $10,000-making in all $18,092.30, and that the defendant is liable only for the proportion of the total loss that the amount of its policy, $932.05, bears to what it claims to be the whole insurance of $18,092.30, or $583.87, which it has already paid. It will be seen, therefore, that the question presented by this submission is the interpretation of the words "whole insurance," used in the clause of the defendant's policy. The words of the policy are "whole insurance covering such property." The words of the Globe Company's policy

are:

"This policy does not cover in whole or in part any merchandise on which there may be at the time specific insurance, excepting on the excess of value over and above such specific insurance, when such specific insurance is exhausted."

Fairchild v. Liverpool & London F. & L. Ins. Co., 51 N. Y. 65, was an action on a so-called floating policy which provided that, if any specific goods included in the terms of the policy shall at the time of the fire be insured in this or any other office, this policy shall not extend to cover the same, excepting only so far as relates to any excessive value beyond the amount of such specific insurance or which said excess is declared to be under the protection of this policy. The property destroyed was of the value of $386,026, the specific insurances

and 136 New York State Reporter

amounted to $324,000, and the total amount of the loss was $274,000. In sustaining an order affirming a judgment dismissing the complaint upon the merits, on the ground that it was not intended that the defendant should be liable for any sum so long as the specific insurances covered the loss, the Commission of Appeals said:

"Insurance is matter of contract, and the parties to it can specify what property, value, or interest it shall in any case cover. It may cover the whole property or any specified interest or value in it. It may indemnify against loss generally or loss above a certain sum or percentage."

It was said, also, that by virtue of the terms of the policy sued upon, if at the time of the fire there should be any specific insurance upon merchandise, this policy should not cover the same, but should then attach to and protect only that portion of the value of the same which was in excess of the specific insurance. In the light of the Fairchild Case, therefore, there seems to be no doubt of the exact meaning and effect of the provision contained in the Globe Company's policy. By its terms it did not cover or protect any of the property affected by the defendant's policy of insurance; that is, it did not and could not affect any part of such property which was fully covered by defendant's policy, and failed to reach that interest in the property which was covered by defendant's policy. In this view, the Globe policy did not in any wise affect the interest in the property which was destroyed, covered by the defendant's policy and the other specific insurances; and the "whole insurance," referring only to the property that was covered by the defendant's policy, does not include the floating insurance, that issued by the Globe Company, for it covered other property.

Farmers' Feed Co. v. Scottish Union Ins. Co., 173 N. Y. 241, 65 N. E. 1105, is not in point. That case defined what "whole insurance" was in cases where all of the policies affected and protected the same property. Here the specific insurances protect one property and the floating insurance another.

The plaintiff, therefore, should have judgment for the sum of $348.18, with interest from June 28, 1905, but without costs, as provided in the stipulation. All concur.

(52 Misc. Rep. 194.)

PEOPLE ex rel. INTERNATIONAL BANKING CORP. v. RAYMOND et al.* (Supreme Court, Special Term, New York County. November 16, 1906.) 1. TAXATION-NONRESIDENT CORPORATION-CAPITAL INVESTED IN STATE.

That a nonresident corporation had not obtained a certificate to do business in the state does not prevent taxation, under Tax Law, § 7, subd. 1, as amended by Laws 1906, p. 535, c. 248, of its capital invested in business in the state.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 286.] 2. SAME-EXEMPTION.

Where a nonresident corporation is carrying on in the state a complete banking business. It cannot claim exemption from taxation on its capital invested in the state, under Tax Law, Laws 1896, p. 799, c. 908, § 4, subd. 13, exempting money of a nonresident. under the control or in the Affirmed by Appellate Division. See 102 N. Y. Supp. 85.

possession of his agent in the state, when transmitted to such agent for the purpose of investment or otherwise; the provision applying only when the foreign principal retains control of his funds, and the transactions of the agent are confined to the mere loaning of the money, carrying on no trade or commercial or other dealing.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 350.]

Certiorari by the people, on the relation of the International Banking Corporation, against one Raymond and others to review an assessment. Assessment sustained.

Alexander & Green (David Rumsey, of counsel), for relator.

William B. Ellison (Curtis A. Peters, of counsel), for respondents.

O'GORMAN, J. This is a certiorari proceeding to review an assessment upon the capital of the relator, a nonresident corporation, invested in business in this state, for the year 1906, The evidence clearly establishes that the business conducted by the relator in this state is continuous and permanent, and under subdivision 1, § 7, of the Tax Law, as amended by Laws 1906, p. 535, c. 248, the assessment was properly made. People ex rel. Yellow Pine v. Barker, 23 App. Div. 524, 48 N. Y. Supp. 553, affirmed 155 N. Y. 661, 49 N. E. 1103; People ex rel. Burke v. Wells, 107 App. Div. 15, 95 N. Y. Supp. 100, affirmed 184 N. Y. 275, 77 N. E. 19. The circumstance that the relator had not obtained a certificate to do business in the state is not decisive of the question. People ex rel. Farcy v. Wells, 183 N. Y. 264, 76 N. E. 24.

The relator does not bring itself within the exemption provided for in subdivision 13 of section 4 of the tax law (Laws 1896, p. 799, c. 908). That provision applies only where the foreign principal retains the control of his funds, and the transactions of the agent are confined to the mere loaning of the money, carrying on no trade or commercial or other dealings. People v. Com'rs, 59 N. Y. 40; People ex rel. Young v. Willis, 133 N. Y. 383-392, 31 N. E. 225. It does not appear that the property assessed was transmitted from the home office for the purpose of loaning or investment. On the contrary, it appears that the relator carried on in this jurisdiction a complete banking business. Assessment sustained, with costs to the respondents.

(117 App. Div. 62)

PEOPLE ex rel. INTERNATIONAL BANKING CORP. v. RAYMOND et al., Tax Com'rs.

(Supreme Court, Appellate Division, First Department. January 11, 1907.) 1. TAXATION-PLACE OF TAXATION-FOREIGN CORPORATION DOING BUSINESS WITHIN STATE.

A foreign banking corporation having its principal office in the state and branch offices and agencies in other cities managed from the main office, is doing business within the state, within the meaning of section 7 of the tax law (Laws 1896, p. 800, c. 908), providing for the taxation of nonresidents doing business within the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 286.]