Opinion
March 23, 1959
J. Preston Mottur for Edwin von Francken-Sierstorpff and another, movants.
Katz Sammerich ( Benjamin Busch of counsel), for Paul Hollos, respondent.
This is a motion by the remaindermen, Edwin and Constance von Francken-Sierstorpff, for an order dismissing a statement of objections and answer, interposed by Paul Hollos, an alleged subassignee of Industrial Participation and Trading Company, Ltd., Inpatra. The primary assignment to Inpatra was declared a nullity by an opinion of this court on June 17, 1958, which is reported in 13 Misc.2d 387. This court also rendered a decision on June 22, 1956, in this estate ( Matter of Knowlton, N.Y.L.J., June 27, 1956, p. 11, col. 1), in which it was observed that "a subassignee of a nonnegotiable chose in action takes an assignment not only subject to all equities existing between the parties to the original assignment but also subject to equities which third persons could enforce against the assignor ( Matter of McClancy, 182 Misc. 866, 870, affd. 268 App. Div. 876, affd. 294 N.Y. 760)," wherefore the subassignment is likewise a nullity insofar as the remaindermen are concerned.
Moreover an affidavit in opposition to the relief sought is interposed, in which it is stated that the respondent Hollos' claim is independent of the primary assignment, which was simply a device for the convenience of the parties; that Hollos asserts a claim for work, labor and services on behalf of the remaindermen. Hollos' claim is, therefore, an ordinary contract obligation and is without the jurisdiction of this court ( Isaacs v. Isaacs, 208 App. Div. 61; Matter of Thomas, 235 App. Div. 455; Schoelles v. Zausmer, 2 A.D.2d 979; Matter of Wien, 137 Misc. 456; Matter of Buck, 203 Misc. 1046) and does not affect the administration of the estate. Motion to dismiss the statement of objections and answer and for summary judgment is, therefore, granted without prejudice, however, to whatever rights Hollos may enforce in another forum.
Settle order on notice.