*908The same principles which governed the prior decision of this court still apply and compel denial of the relief sought by petitioner. A village in the absence of a contract has the power in its absolute discretion to discontinue the service or supply of water to nonresidents upon the giving of reasonable notice (see Op. St. Comp., 59-442). The right of a village to supply water outside its corporate limits is governed by section 232 of the Village Law. The section expressly prohibits the sale or use of water to <mask> properties if thereby the supply for the village or its inhabitants will be insufficient (see, also, 10 Op. St. Comp., 1954, p. 414). “ This section is permissive in nature and places no obligation upon the [village] to sell even 1 surplus ’ water to an outside user even though the benefit to him to be great and the disadvantage to the village small.” (Matter of Penn-Yorh Lanes v. Village of Waverly, 26 Misc 2d 150, 151.)


Only after the grant of a commission authorization to a defendant may the court then authorize that same commission on behalf of the People to examine <mask> witnesses upon the same substantive and formalistic requirements as found in CPL 680.20 and 680.40. Nowhere is there mention in CPL article 680 of the issuance of interrogatories ex parte in criminal cases.4


Under section 249-p the tax imposed on the estate of a <mask> is limited to that part of the estate consisting of real property situated in New York and tangible personal property located here. The formula there provided is this: ‘1 Ascertain the amount of tax which would be payable under this article if the decedent had died a resident of this state with all his property (except real property situated and tangible personal property having an actual situs outside this state) situated or located within this state, and multiply the net tax so ascertained by a fraction the denominator of which shall be the value of the *303gross estate as ascertained for the purpose of computing such tax and the numerator of which shall be the said gross estate value of the real property situated and the tangible personal property having an actual situs in this state. The product shall be the amount of tax payable to this state. No credit shall be allowed against the tax so determined.”


Plaintiff’s attempt to uphold the attempted service on the ground that it is authorized by section 232 of the Civil Practice Act is held to be lacking in merit. There are important differences between the instant case and Sillman v. Twentieth Century-Fox (3 N Y 2d 395) principally relied upon by plaintiff: (1) in that ease, the plaintiffs therein were held by the court to be present assignees of certain percentages of the profits of motion pictures which were to be produced by defendant, Twentieth Century Fox; (2) there was an actual fund in this State, viz: the specified percentages of the profits which defendant, Twentieth Century Fox, sought to deposit with Chemical Bank, which refused to accept it; (3) plaintiffs were merely attempting to cut off the rights of their own <mask> assignors to that *845fund, an attempt which did not require an in personam judgment against the nonresident assignors. In the case at bar, however, there is no real proof of a fund in this State. Its existence is denied. At any rate, Voelker’s claim against the alleged fund and against the indebtedness due and to become due from those defendants who have contracted with Voelker for the sale of the motion picture rights, in alleged breach of Voelker’s alleged contract with plaintiff, may not be validly cut off without an in personam judgment against Voelker, adjudicating that there is a valid contract between plaintiff and Voelker (which is disputed by Voelker). Where a holding that there is valid in rem jurisdiction. depends upon a prior in personam adjudication, which cannot be made for lack of in personam jurisdiction, the attempt to assert in rem jurisdiction must fail (Jackson v. Jackson, 290 N. Y. 512; Morgenstern v. Freudenberg, 7 Misc 2d 273). As was pointed out in the Morgenstern case (supra), the holding in the Jackson case (supra), that there was in rem jurisdiction, was predicated on the fact that the separation agreement there involved was void on its face under the Domestic Relations Law and, therefore, no in personam decree holding it void was necessary.


The question that now remains for determination is whether, even though defendant did not do business, transact any business, mail policies into Louisiana or have any other connection with that State, it still had sufficient “ minimum contacts ” to satisfy the test set forth in International Shoe (326 U. S. 310, supra). In Pugh v. Oklahoma Farm Bur. Mut. Ins. Co. (159 F. Supp. 155), the court was presented with precisely the same question since the defendant insurer in that action did not do business or transact business in Louisiana and, as in the case at bar, was sued when its insured was involved in an accident in Louisiana. The court found that the minimum contact requirement was met where the insurer’s only contact with the State was its “ presence on the risk ” at the time of the accident. The court stated (pp. 158-159): “ Since the accident *459within the state is sufficient contact to justify maintenance of the suit for damages against the <mask> motorist, it would seem that the same accident should justify maintenance of suit against his nonresident liability insurer who, after all, is the real party in interest.”


The objection to the plaintiff’s legal capacity to sue is predicated upon the claimed invalidity of the two assignments upon which the plaintiff bases her cause of action. These assignments were executed in Yugoslavia, and it is charged that they are in violation of the laws and regulations of that country governing the assignment of foreign assets. The Yugoslavia Foreign Exchange Law makes invalid any legal transaction within its purview unless an authorization or a license be obtained. Bach side called as a witness an expert in the law of Yugoslavia. There is no doubt that it is illegal for a resident of Yugoslavia to transfer to a <mask> assets located outside Yugoslavia without a license from the Government of Yugoslavia. It seems clear from all of the testimony that an absolute assignment of all of the rights of the original plaintiffs would be invalid under the law of the place where the assignments were made unless a license were obtained from the Government of Yugoslavia. The two experts do not appear to be in disagreement on the fundamental rules that are applicable. The real difference between the two is in the view they take of the character of the assignments.


If we may use the word “ living ” to start out with, it may be said that there can be no question but that defendant and his family were living at Holland Patent during the period of the school year from September, 1909, and ending in June, 1910. The question is, do “living” and “residing” mean the same thing in law ? A decision of that question involves a consideration of the legal meaning of the word “ residence; ” and an examination of the authorities discloses that it has received different definitions in various eases, principally involving franchise, taxation and jurisdiction. Strictly speaking, the case at bar does not come under either head, but.we may look at the decisions in these cases for aid in settling *475the questions of what is, meant by a resident and what a <mask>. “ There is sometimes a distinction between actual and legal residence; the latter being generally equivalent to a domicile.” “ To constitute a domicile two things must concur: first, residence; second, intention to remain there." Domicile, therefore, or legal residence, means more than residence. A man may be a resident of the particular locality without having his domicile there. He can have but one domicile at one and the same time, at least for the same purpose, although he may have several residences.” In some cases it has been held that the word “ residence,” as understood in the laws of Hew York, means domicile .In Cincinnati, H. & D. R. Co. v. Ives, 21 N. Y. St. Repr. 67, from which the above quotations are made, Justice O’Brien considers the proper definition of the term in question, at length, and reaches the above conclusions. To constitute residence there must be a settled, fixed abode, an intention to remain permanently at least for a time, for business or other purposes. Frost v. Brisbin, 19 Wend. 11. In that case, it was held that a person had his domicile in this State while his residence was in Wisconsin. Similar holdings were made in cases of Hart v. Kip, 22 N. Y. Supp. 522, and Hanover National Bank v. Stebbins, 23 id. 529.


Substantial justice and liberal construction require that the Small Claims Title of the Nassau County District Court Act and rule III of this court be construed to prevent <mask> owners of businesses established in Nassau County from avoiding the jurisdiction of our court, by refusing delivery or deliberately ignoring small claim notices properly directed to them at their regularly established places of business. Motion denied.


CPLR 302 (a) (1) was amended in 1979 (the language was subsequently incorporated into CCA 404) to permit the assertion of long-arm jurisdiction where the plaintiffs cause of action arises from a contract “to supply goods or services in the state,” without regard to where the contract was made. It is clear that the exercise of jurisdiction is not proper under every set of facts that seemingly fit a straightforward reading under the statute. The stated purpose of CPLR 302 and CCA 404 was to embrace nonresidents who have engaged in purposeful activities in connection with the matter in suit and to extend as far as due process will allow. (Gasarch v Ormand Indus., Inc., 346 F Supp 550 [SD NY 1972].) To determine this limit, New York courts have adopted requirements that mirror the International Shoe Co. test. The New York personal jurisdiction inquiry requires an affirmative answer to the following questions: (1) is the quality of the New York contact of such a nature that a <mask> defendant can be deemed to have purposefully invoked the benefits and protections of New York law, and (2) does the claim in question arise out of that purposeful New York activity. (Hutton v Piepgras, 451 F Supp 205 [SD NY 1978].) As David Siegel notes in CCA 404 Practice Commentaries (at 132) “the case law on [long-arm jurisdiction] is immense and almost every case is just a sui generis inquiry into whether or not the acts performed by the defendant constituted the [necessary] contacts.” (Emphasis added.)


The New York Uniform Support of Dependents Law "is *779substantially similar to the Uniform Reciprocal Enforcement of Support Act [URESA] and * * * permits reciprocity between the various jurisdictions”. (McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, art 3-A, p 155.) Courts in jurisdictions other than New York have analyzed the role of the initiating court in uniform support proceedings. In its most limited role, the initiating court should be satisfied that the petition which it certifies sets forth facts from which it may be determined that the respondent owes a duty of support. (Mahan v Read, 240 NC 641; O’Hara v Floyd, 47 Ala App 619.) A more expansive role, finding that the obligor owes a duty of support before certifying and transmitting the petition, is favored by some other courts. (See, e.g., Matter of Duncan, 17 Ohio Opns 2d 21; Paul v Paul, 439 SW2d 746, 747 [Mo]; Cobbe v Cobbe, 163 A2d 333, 336.) One court, in considering the role of the initiating court, stated that the court should examine the petition to see if there is a “probable existence of a duty to support” as to warrant transmittal of the petition. (Neff v Johnson, 391 SW2d 760, 764 [Tex].) In Prager v Smith (195 A2d 257, 258), the District of Columbia Court of Appeals reasoned that the initiating court “had the primary duty under the statute to decide if * * * [petitioner] had made a prima facie showing of need for the support for the children and that they were entitled to support from the <mask> father”. The reasoning in Prager best enunciates this court’s understanding of the role of the initiating court.


Nor is there any basis for the defendant’s motion to vacate the attachment on the theory that no res or property existed in the State of New York. The court in Fishman v. Sanders (18 AD 2d 689) in passing upon an analogous situation sustained the right of a plaintiff to attach an insurance policy for the purpose of obtaining jurisdiction over a <mask> defendant.


The will is dated February 7, 1957 and was prepared by an attorney in Truth or Consequences and was there executed by the decedent. In the probate proceeding in this court, it was specifically alleged that the decedent was a resident of Truth or Consequences. Since that proceeding was for the original probate of a will of a <mask>, a citation was issued to the State Tax Commission and its waiver was duly filed. It is the position of the State Tax Commission, however, that since the decedent in his will declared himself to be domiciled in “ New York City, New York where my property is principally situate ” his executor must defend that statement. The law is well established that intent alone is not sufficient for the acquisition of a domicile in this State. The intent must be accompanied by a residence within the State (Matter of Trowbridge, 266 N. Y. 283; Matter of Newcomb, 192 N. Y. 238). Not only did this decedent not have a residence here but it would appear that he was never in New York State. Not infrequently a person changes his residence from one State to another without executing a new will and consequently the statement in the instrument as to residence is no longer effective. Clearly under such circumstances there is no obligation on the executor to defend the statement in the will as to residence. On the facts in this case the court holds that the decedent was not a resident of the State of New York at the date of his death.


There is no doubt that the business of insurance is one that is affected with a public interest and that it is a subject for regulation and control by the State by virtue of the exercise of its inherent police power. (La Tourette v. McMaster, 104 S. C. 501, affd. 248 U. S. 465; Life & Cas. Co. v. McCray, 291 U. S. 566; People v. Formosa, 131 N. Y. 478.) Such power to regulate the business of insurance likewise includes the right of foreign insurance companies to transact an insurance business within the boundaries of a State,-provided, however, that the conditions *343of admission are not in conflict with either the Federal or State Constitutions. (Hoopeston Co. v. Cullen, 318 U. S. 313; Bothwell v. Buckbee, Mears Co., 275 U. S. 274; Matter of People [Norske Lloyd Ins. Co.], 242 N. Y. 148.) So too it has been held that the power of a State to regulate the insurance business conducted within such State likewise includes the right to regulate and control the agents and brokers through whom such business is carried on. (Daniel v. Family Ins. Co., 336 U. S. 220; Osborn v. Oslin, 29 F. Supp. 71, affd. 310 U. S. 53; Mendola v. Dineen, 185 Misc. 540.) The law pertaining to writing of insurance through the medium of foreign insurance is set forth in section 130 of the Insurance Law. That section has been construed in the case of Mendola v. Dineen (supra) as follows (p. 547): “If a foreign insurer could issue policies through a <mask> and unlicensed agent or broker, then, of course, all the regulations enacted by the State and applicable to anyone writing insurance within its borders, would be rendered meaningless.” Defendant’s contention is that the laws of Virginia prohibit the payment of commissions to nonresident insurance brokers who are not licensed in the State of Virginia on policies of insurance which are written on property located in Virginia. Section 38.1-282 of the Code of Virginia, 1950, as amended, provides as follows: “§ 38.1-282. Insurance transacted through resident agents or company representatives. — Except as otherwise provided in this title, no insurance company, other than a mutual company, shall transact insurance in this State except through regularly constituted resident agents licensed in this State; and no mutual insurance company shall transact insurance in this State except through regularly constituted resident agents licensed in this State, or through its officers or employees who are licensed as company representatives. (Code 1950 § 38-61; 1952, c. 317.) ” Defendant relies upon this section and various other sections of the Code of Virginia, namely 38.1-283, 38.1-287 and 38.1-289.


Daly, F. J. A judgment against a <mask> can be recovered by a publication of the summons only where he has property in the state, a restriction that indicates very plainly that the judgment recovered in this mode is limited in its effect to the property which the defendant has in this state. If it were not so, if the legislature intended to authorize the recovery of a judgment in this way against a non-resident, which should have all the effect of a judgment in personam, there would have been no occasion for this restriction. Three things are essential to give the court jurisdiction: first, that the defendant is a non-resident; second, that he has property here; and third, that he could not, after due diligence, be found within the state—which, taken together, show that the design was to enable a person who has a cause of action against a nonresident, whom he cannot serve with process, to obtain the satisfaction of his claim out of the property of the non-resident situated here. For this purpose he is permitted to recover a judgment, by the service of the summons by publication, and by the deposit of a copy of it, directed to the defendant, if his residence is known, under which the plaintiff may reach -by execution any property of the defendant in this state. Provision is made for allowing the defendant to defend after judgment, and if the defence is successful, and the judgment, or any part of it, has been collected, empowering the court to compel restitution. These provisions denote the nature of the judgment, that it does not possess the exclusive character of judgments founded upon personal service of process. It does not, like the latter, import absolute verity, or that it is a conclusive adjudication of the rights of the parties, inasmuch as the law creating it contemplates that it may be questioned and a defence made to it under certain conditions for the space of seven years. A judgment founded upon personal service of process, on the contrary, becomes an absolute debt of record, and as such may be recovered upon in any state of the *296union by proving the judgment. If the defendant had notice, it is conclusive upon the merits, (Evan agt. Taten, 9 S. & R., 260;) but if he had not, it is of no validity whatever out of the state where it was rendered. (See cases collected in Oakley agt. Aspinwall, 4 Comst., 521.) It is even very doubtful whether the legislature could confer authority to enter a judgment which should have the effect, within the limits of the state, of a judgment in personam, in a case where the defendant is not brought into court by actual notice of .its process. (Mervin agt. Kumbell, 23 Wend., 293.) “It is against a first principle of justice,” says Bronson, Justice, in the case last cited, “to hold a man concluded by a judgment when he had no opportunity of answering in the original action.” Under the old joint debtor act (1 R. Laws of 1813, 521, § 13,) if the process was served upon one, the judgment was entered as if all had been brought into court, but execution could not issue against the person or separate property of those not served. Under this act it was held that an action might be brought upon the judgment, and that it was prima facie evidence of the joint indebtedness, but that a defendant not originally brought into court might avail himself of any defence which it would have been competent for him to urge in the original action, and if he put the fact of his indebtedness in issue, it was incumbent upon the plaintiff to establish it, and not upon the defendant to disprove it. (Townsend agt. Carman, 6 Wend., 206; Id., 6 Cow., 693.) But that is a different case from this. Here the right to enter judgment against the defendant not personally served with process, is limited to Cases in which he has property in the state, and the law Conferring the right has provided the mode in which he is to be allowed to defend after judgment, that is, by applying to the court in which it was rendered. That court may allow him to defend at any time within one year after notice of the judgment, or after judgment, upon good cause shown, or within seven years after its rendition, Upon *297such terms as may be just. The existence of the provision satisfies me that it was not the intention that the defendant might be sued upon this judgment in another court, or that it was intended to have any other operation or effect than to reach the property of the non-resident situated in this state. The judgment should be affirmed.


In a number of cases it has been held that the courts will not countenance attachment or garnishment procured by any unlawful and fraudulent trick by which the property of, or indebtedness to, a <mask> was subject to the jurisdiction (Ann. 37 ALR 1255). In Saxony Mills v Wagner (94 Miss 233) it was held that one indebted to a nonresident cannot place money in a bank to his credit, in defiance of his wishes, for the purpose of conferring jurisdiction in garnishment proceedings upon a court where the bank is located. The third-party defendant’s attempt to attach its own judgment obligation to Arias is very much the same artifice, except without the additional contrivance of opening up a bank account to Arias’ credit.


In the circumstances, an argument may be presented that — in the face of the Bronx rule specifically requiring that the plaintiff be a resident of Bronx County — a preference may not be granted in The Bronx to an out-of-State resident. On the bare basis of the precise wording of the rule, the contention has merit. But I am not persuaded. Calender congestion in negligence cases does not plague any one county in New York City. In my view, the failure to amend the Bronx rule — in line with the rules in the other metropolitan counties — was merely an oversight. And once again, where the practice in our sister counties is sound and just, I shall speak for the elimination of contrariety of technical view in the county where I am privileged to preside (see Parker v. Burgoyne, 167 Misc. 542; Kenyon v. Lord & Taylor, 206 Misc. 611; Smith v. City of New York, 3 Misc 2d 602). I shall therefore not apply the rule strictly on the basis of its language — for as I see it, the purpose of the rule will not in any way be frustrated by holding that a preference is allowable (cf. Continental Grain Co. v. Christie, 259 App. Div. 126). There is no danger that a <mask> suing a New York resident in such a case will be able to scan the State for a favorable preference rule — since the proper venue is in the county *817where the defendant resides (Civ. Prac. Act, § 182) and since the court has ‘ ‘ inherent power and sound discretion * * * to. manage its own calendar problems ” (Cook v. Howard, 208 Misc. 358, 360; see Toomey v. Farley, 2 N Y 2d 71).


It is clear that in the ordinary case involving a <mask> plaintiff and a nonresident defendant where the act complained of as to that individual defendant took place outside the State of New York, in rem jurisdiction of such nonresident *1088defendant may not be usually obtained by attachment of an insurance policy issued by an insurer doing business in New York (Vaage v Lewis, 29 AD2d 315; cf. Seider v Roth, 17 NY2d 111, supra; Minichiello r Rosenberg, 410d 106). Thus, standing alone without considering any other circumstances, plaintiffs application for an order of attachment might be denied, since any act of alleged malpractice on the part of Hawkes occurred in New Jersey. However, it is the opinion of this court that the circumstances found herein compel a different conclusion.


“[T]he general procedure to be employed when a nonparty witness is sought to be deposed on oral questions is to secure a stipulation or, in the alternative, to serve a subpoena on the nonparty witness, pursuant to CPLR 3106 (subd [b]), and to serve notice of the intended examination on each party to the action, pursuant to CPLR 3107.” (Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984], citing McNulty v McNulty, 81 AD2d 581 *806[1981]; Spector v Antenna & Radome Research Assoc. Corp., 25 AD2d 569 [1966]; Bush Homes v Franklin Natl. Bank of Long Is. 61 Misc 2d 495 [1969].) However, in this case, the nonparty witness, Paul, is not only not a resident of the State of New York but she is a resident of a foreign country, to wit: Canada. There is no authority for the service of a subpoena on a nonparty witness who is a <mask> of New York State (see Wiseman v American Motors Sales Corp., supra, citing Judiciary Law § 2-b; Peterson v Spartan Indus., 40 AD2d 807 [1972]; Siemens & Halske, GmbH. v Gres, 37 AD2d 768 [1971]; Israel Discount Bank, v P.S. Prods. Corp., 65 Misc 2d 1002, 1004 [1971]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2303:7). “Since the service of a subpoena outside of this State will be ineffective to compel such a witness to appear at an examination, CPLR 3108 makes available, upon application to the court, the commission and the letter rogatory as devices to secure disclosure.” (Wiseman v American Motors Sales Corp., supra at 235.)


On March 11, 2011, the Chief Counsel for the California State Controller issued subpoenas duces tecum on nonparties, the custodian of records of U.S. Philips Corporation (hereinafter U.S. Philips), Jack Haken, and Algy Tamoshunas. Hyatt, an inventor, entered into an exclusive licensing agreement with U.S. Philips, effective July 1991 (hereinafter 1991 agreement), which granted U.S. Philips a license under a group of Hyatt’s patents for its own use, as well as the exclusive right to license additional patents to other companies. Haken and Algy Tamoshunas were in-house counsel for U.S. Philips and worked with Hyatt on the licensing of his patents by U.S. Philips to other companies. In support of the subpoena duces tecum, William Dunn, in-house counsel for the FTB, stated in his declaration that the primary legal issues in the administrative tax appeals were Hyatt’s assertion that he became a <mask> of California in 1991, Hyatt’s objection to the proposed imposition of a fraud penalty, and Hyatt’s contention that he did not operate a business from California through December 31, 1992, which generated “California source income.” The subpoenas duces tecum sought, inter alia: all documents relating to or discussing the agreement between Hyatt and U.S. Philips; documents regarding any license or sublicense under any Hyatt patent; all documents reflecting money paid for a license or sublicense under any Hyatt patent; all documents discussing or reflecting any plan or agreement by Hyatt and U.S. Philips to seek revenues from the licensing or sublicensing of any Hyatt patent; all communications sent or received as to certain *505patents; billing of counsel for work performed, on behalf of, or relating to, Hyatt; all documents regarding negotiations; drafting and finalizing agreements between Hyatt and various corporations; and all communications between Hyatt and personnel for U.S. Philips.


In the pending case, the verified complaint alleges that the last known residence of the defendant was in the city of New York and the sworn statement alleges that the defendant was not at that time in Puerto Rico, that he was in the United States and that his whereabouts or residence were not known. The Code of Civil Procedure of Puerto Rico does not require that the affidavit give the sources of knowledge of the fact of non-residence of the defendant. The statement that he was in the United States satisfied the court which made the order of publication. No one even suggests that in point of fact the objectant was then, or ever had been in Puerto Rico. The evidence would indicate that he was in fact in the United States when the publication of the summons was made. Such evidence as there is serves only to support the statement of the plaintiff that the defendant was a <mask> of Puerto Rico and was then in the United States. The court agrees with the learned Referee that the procedural requirements under the law of Puerto Rico for a valid judgment were fulfilled.


Before reaching the issue of the effect of the decision in Clark (supra), it is important to analyze the legislative history of subdivision (h). This statute was enacted in 1966 (L 1966, ch 952, eff Sept. 1, 1967), after the death of the decedent in Clark, as part of the sweeping revision of the law of estates spearheaded by the Bennett Commission. The commission’s report to the Legislature on “The Decedent Estate Law As Affected By Conflict of Laws Considerations” recommended perpetuation of the rule that a non-domiciliary “may by his will declare that his property situated in this State shall be regulated by our law. In such case the reference ought to be to the local law of this State.” (Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, Fifth Report, NY Legis Doc [1966], No. 19, p 659 [hereinafter cited as Fifth Report].) The Legislature enacted EPTL 3-5.1 (subd [h]) exactly in the language recommended by the commission (Fifth Report, at p 241). In discussing what was meant by the word “effect” used throughout the section, the Fifth Report says (at p 630) “ ‘effect’ involves the legal consequences that flow from an otherwise valid provision of a will, such as *** the * * * exclusion of a surviving spouse from testamentary benefits and the like.” Most significantly, the report informed the Legislature that the prior statute, section 47 of the Decedent Estate Law, allowed a <mask> testator to escape onerous restrictions on the testamentary disposition of property imposed by the laws of his own domicile, citing a case involving forced *36heirship. (Fifth Report, at p 636.) This report was dated May 22, 1963. Thus, both the report and the enactment of the new statute preceded the 1968 decision in Clark (21 NY2d 478, supra), the decedent therein having died before the effective date of the current statute.


Id. As part of their agreement, the plaintiff “contracted to train [the defendant’s] employees, aid in designing [the defendant’s] manufacturing facilities, provide technical support and regulate quality control of [the defendant’s] products.” Id. The parties “planned to participate in each of these functions either wholly or in substantial part in Texas.” Id. We ultimately concluded that the defendant had “engaged in such ‘continuing and wide-reaching contacts’ with [the plaintiff] in Texas, and committed itself to such future contacts in the forum, that it should reasonably have anticipated being haled into court there.” Id. Morgan Verkamp calls our attention to several cases in response. In Trois, we concluded that because the “contract was executed and performed solely in Ohio” and the “only alleged Texas contacts related to contract formation or breach are [the defendant’s] conference calls negotiating the agreement while [the plaintiff] was in Texas,” Texas courts did “not have personal jurisdiction over the defendants regarding the breach-of-contract claim.” 882 F.3d at 489. Similarly, in Moncrief Oil, a dispute involving several contracts that “were executed in Russia, with a Russian corporation, concerning a Russian joint venture, to develop a Russian gas field,” we rejected the argument that states have personal jurisdiction over “breach of contract case[s] where a <mask> enters into a contract with a known resident of the forum state, if it is reasonably foreseeable that the resident will perform a material part of its obligations in the forum state and thereby cause business activity in the forum state.” 481 F.3d at 312. We explained that the plaintiff, a Texas resident, had simply “agreed to perform analysis, without any discussion of where it would be done. The contract was silent as to location.” Id. at 313. Moreover, “[g]iven the nature of the work, there’s no indication that the location of the performance mattered.” Id. Moncrief Oil also distinguished Central Freight, explaining that the contract in that case had “contemplated that the plaintiff would make shipments from Texas on


Center for Environmental Health (CEH) filed a complaint in Alameda County alleging that Dow Agrosciences LLC (Dow) and other unnamed defendants are violating the Act by failing to warn individuals who live or work in the Kern County town of Shafter that a soil fumigant manufactured by Dow contains a chemical known to cause cancer. Dow responded to the complaint by filing a motion to transfer this case to Kern County, where the cause of action arose, pursuant to section 393, subdivision (a) of the Code of Civil Procedure ( section 393(a).)1 The trial court denied *763the motion, finding *1072that venue is proper in any county under section 395, subdivision (a) (section 395(a)) because Dow is a <mask> defendant with no principal place of business in California.


The brother Edward died July 27, 1893. He also, it is proved, never filed any deposition, but chapter 207 of the Laws of 1893 went into effect on March twenty-fourth of that year, or about four months prior to his death, and we, therefore, have to consider the effect of that statute-upon his case. Briefly, the purport of that statute was tó do away with the requirement of the filing of the deposition which was required by the acts of 1874 .and 1875'. The case of McCormack v. Coddington, 184 N. Y. 467, decides that the -act of 1893 is not retroactive, and that it applies only to cases arising 'after, and' not before, the passage of that act. It holds 'that, upon the death of one who was either a citizen or a resident alien, one of whose heirs was a. <mask> male, who had failed to file the deposition required by the Laws of 1874, chapter 261, at the moment of his death he had no right to hold the title and had no right to pass it on to another, and that it reverted, at once on his death and without any proceedings, to the State (p. 475). Upon the authority of ibis case, I think I. must decide that the share of Edward escheated to the State.


After the decedent’s death certain policies of insurance on his life, issued by Hew York companies and payable to his estate, were found in a safe in this city. Where they were issued does not appear. They have been collected in Hew York and the amount represented by. them has been included in the property assessed to determine the tax. Such assessment is specified as a further ground for this appeal. In Matter of Abbett, 29 Misc. Rep. 567, Mr. Surrogate Varnum determined that policies of life insurance, issued by life insurance companies of this State on the lives of <mask> decedents, when such policies are not within the State, are not subject to the transfer tax. I was satisfied with his reasoning and with his decision, and will adopt his conclusion. A policy of life insurance is evidence of a right of action and is taxable as an asset of the estate of a deceased resident to whom it is payable. (Matter of Knoedler, 140 N. Y. 377), but it is not taxable if payable to a nonresident decedent, on the mere ground that the debtor is a Hew York corporation. It remains to be considered whether the rule will be otherwise where, as in this case, the policy is kept by the decedent in this •State and is here at the time of his death. In Matter of Whiting, 150 N. Y. 27, the bonds issued by foreign, as well as by domestic corporations, kept by the decedent in this State and found here on his death, were determined to be properly included in the appraisement to fix the transfer tax. The theory upon which the court proceeded to judgment was that the written instruments were physically within the State, and constituted property here subject to taxation. They were regarded as tangible and apparently in nature of chattels. A bond, by the terms of which a .corporation obligates itself to pay, absolutely and at all events, a specified sum of money, differs substantially from a contract of life insurance. A policy of life insurance is not *320evidence of debt absolutely payable. By its own terms it is payable not absolutely, but conditionally. It admits no existing debt, but agrees that one may arise if certain specified conditions . are performed. It is none the less a conditional contract, although ultimately there may grow out of it an absolute liability.


' Buie 2A confers the same power of preference on a justice presiding at a Pre-Trial Term as at Trial Term, Part I. It requires that certain conditions be met: (1) that the plaintiff is a resident of the county, or'a <mask> of the State, and the venue is properly laid in the county; (2) that copies of the summons, verified complaint, verified bill of particulars and doctor’s affidavit, stating the duration and description of the injuries, the plaintiff’s disability, and the prognosis, be filed and examined by the court.


Such waiver has been excused because the facts of an accident are peculiarly in the knowledge of the party to be examined (Amkraut v. Roanoke Garment Co., 5 A D 2d 863); the defendant’s lawyer left the country on a vacation (McGuire v. Pick, 8 A D 2d 800); certain <mask>, nonparty witnesses refused to appear at the trial as anticipated (Van Blarcom v. Rogers, 11 A D 2d 678); a pleading was amended substantially increasing the ad damnum clause (Falkenstein v. Heyman, 12 A D 2d 918); a pleading was amended five years after the action was commenced, at the eve of trial, without changing the basic issues and without prejudice to anyone (Symphonic Electronic Corp. v. Audio Devices, 24 A D 2d 746); a new complete defense was added to a pleading based upon a recent United States Supreme Court decision (Schneph v. New York Times Co., 22 A D 2d 641); in a wrongful death action, the facts of the accident were solely within defendant’s knowledge (Farrell v. Reed, 16 A D 2d 709); substituted counsel acted promptly in representing an infant plaintiff who was seven years old at the time of the accident (D’Angelo v. Goddard, 29 A D 2d 333).


It has been held that the mere solicitation of business in New York State by a nondomiciliary corporation is insufficient to subject it to our jurisdiction (Rose v. San Souci Hotel, 51 Misc 2d 1099). Nor is the mere execution of a contract here by a non-domiciliary conclusive as to jurisdiction, with no other contacts (Bundt v. Embro, 27 A D 2d 931; Standard Wine & Liq. Co. v. Bombay Spirits Co., 25 A D 2d 236); and finally, CPLR 302 (subd. [a], par. 1), authorizing a court to exercise personal jurisdiction over any nondomiciliary who transacts business within the State, does not automatically reach a <mask> who never comes into New York but who sells and sends goods into the State (Maggio v. Gym Master Co., 54 Misc 2d 845; Muraco v. Ferentino, 42 Misc 2d 104).


Defendant contends that the “ affidavit of service fails to allege service in compliance with the statute.” Under this type of statute, service, as such, actually occurs when the Registrar of Motor Vehicles is served with the process. The subsequent mailing of notice to the <mask> defendant is merely a notice *836requirement. Plaintiff’s Exhibit 3 (e) is the affidavit of service by the Deputy Sheriff of Hampden County stating that he served the process with $2 fee on the Registrar. Plaintiff’s Exhibit 3 (d) is the affidavit of compliance made by plaintiff’s Massachusetts attorney stating, inter alia, that he “ caused the defendant, Hans J. Frilund, to be served by a deputy sheriff of Hampden County, in accordance with General Laws (Ter. Ed.) Chapter 90, Sections 3-A, B, C and D, as shown more clearly in the sheriff’s return and that further, in accordance with the provisions of said Chapter 90, Section 3-C, [he] caused notice of such service and a copy of the process to be sent forthwith by Registered Mail to defendant, Hans J. Frilund. ’ ’


In May, 1955 plaintiff brought suit in Monroe County Court upon said decree of divorce for the unpaid support payments required thereunder. At that time plaintiff was a <mask>. Defendant obtained a stay of that action until plaintiff should file security for costs. Plaintiff never filed such security; and on defendant’s motion an order was made by the Monroe County Court on September 6, 1961 and duly entered, dismissing said action for failure to prosecute, under section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice. Thereafter, plaintiff instituted this action.


*175It appeared that the plaintiff had been absent in Europe after the sale, at one time for eight months, and, at another, for two months, embracing, in all, an absence of ten months between the time of the sale and the commencement of the action, which absence, if deducted in the computation of time, would bring the commencement of the suit within six years. The statute declares, that if after the cause of action accrues against any person he shall depart from, and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of the action. Was the absence of the defendant in Europe, for the period stated, a residence out of the state within the meaning of the statute ? To arrive at what is meant by a residence out of the state, it is essential to consider the object which the framers of the statute had in view; to look at the reason - which existed for the enactment of such a provision, which was introduced as a special clause into the pre-existing statute of limitations, at the time of the revision of the laws, in 1830. The reason and object of the provision is very well stated by Justice Dube, in Ford v. Babcock, 2 Sand. S. C. R. 529. The only reason that can be assigned for permitting absence of ■the defendant, when the cause of action accrued, to prevent the statute from beginning to run, is the inability of the plaintiff to prosecute his claim, during such absence, unless by resorting to a foreign tribunal. And the learned judge then proceeds to say, that if it is just that the absence of the defendant, at the time when the cause of action accrued, should prevent the statute from beginning to run, it is equally just that his absence, after the statute has commenced to run, should suspend its operation. The ground, then, of this exception to the prescribed period of limitation is the inability of the creditor to prosecute his claim in this state, by reason of the absence of the debtor. In other words, he is not to be deprived of the right of collecting his debt by operation of the statute, unless where, having the opportunity of prosecuting his creditor for six years, he suffers that length of time to pass by without commencing his action. *176Now lie cannot be said to have this opportunity, unless the creditor has been in the state for six years, so as to be at any time during that period within the reach of process. A party may be absent for a year, thus limiting his creditor’s opportunity to five years, without losing his residence here. Journeying for pleasure, he might be absent for a much longer period, and yet be deemed a resident of the state for many purposes. It never could be intended that the time thus lost to the creditor should be included in the computation of the six years. He could not be charged with neglecting to act for that length of time, when, during a portion of it, it was out of his power to institute a suit. The statute distinguishes between simply departing from and residing out of the state; and I suppose the true construction of the latter provision of residing out of the state to be a material absence from it, as contradistinguished from a temporary departure, followed by an immediate return. I cannot think that the statute applies only to cases where a party has lost his legal residence here for all purposes, and taken up an absolute residence elsewhere. The statute which formerly. existed, authorizing an attachment of the property of <mask> debtors, contained a similar provision. It subjected to attachment the property of debtors residing out of the state. What constituted a residence out of the state, within the meaning of the statute, came up for consideration In the Matter of Thompson, 1 Wend. 43. In that case the debtor had been a resident of this state, and, at the time the attachment was issued, had been absent in Scotland for nearly two years. He was the principal member of a firm here, the business of which was continued in his name, in this city, when his property was attached. Hpon an application made to Judge Invino, of this court, he suspended the attachment, upon the ground that the domicil of the debtor was here; but the Supreme Court reversed his order. It was contended, upon the application for reversal, that absence without the state, whether the debtor have his domicil or amere residence here, was equally within the object of the act; and Chief *177Justice Savage said, in delivering the opinion of the court, that the object of the act was to authorize creditors to prosecute for their debts, when their debtors were abroad, whether their absence from this state was permanent or temporary / that it was intended to afford a remedy to creditors, when debtors could not be served with process. The debtor, he says, is out of the reach of the process of the law, and therefore the legislature have provided that his property shall be hable for the payment of his debts. This was, in effect, declaring that absence from the state, at the time the property was attached, was residing out of the state, within the meaning of these words; and I see no reason why the construction thus given to the words, when used in this particular act, may not be taken as equally explanatory of the sense in which they are employed in the statute under consideration. If I am right in the conclusion at which I have arrived, the statute ceased to run during the ten months that the defendant was in Europe. That there were two distinct periods of absence, makes no difference; for whether a party is absent upon one or upon several occasions, the whole time that he is absent is to be taken and computed together. (Ford v. Babcock, 2 Sand. S. C. R. 531; Dedier v. Davidson, 2 Barb. Ch. R. 477.) The judgment rendered at the special term should, therefore, be affirmed.


“ Whenever the property of a resident decedent or of a <mask> decedent within the State, transferred by will, is not specifically bequeathed or devised, such property shall, for the *444purpose of this, article, be deemed to be transferred proportionately to and divided pro rata among the general legatees and devisees named in said decedent’s will, including all transfers under a residuary clause in such will.” Tax Law, subd. 3:, art. 10, as incorporated in the Consolidated Laws. On May 30, 1908, or twelve days after this amendment went into effect, the decedent died a resident of the State of Connecticut. She left a will which contained the following provision :


So much for the facts relating to the merits. Defendants are <mask> corporations and the master policy (as well as another contract between the defendants) contains a choice-of-law provision. A previous motion was decided by this court on August 28, 1973. Since that time one party has been dismissed, another added, pleadings amended, and a stipulation of agreed facts executed. The broad legal areas that require consideration are: in personam jurisdiction, conflict of laws and the duty owed to an insured to advise him of conversion rights.


In reply, plaintiffs suggest that even if defendants had a longstanding policy to assess a tax on <mask> shareholders in this type of transaction even prior to the 2010 amendment, defendants were not authorized to make such assessments under New York Tax Law (doc 28, plaintiffs’ reply at 4). At oral argument on the instant motion, plaintiffs’ counsel argued that defendants’ claim that the Department had adopted this policy is tantamount to the Department “saying . . . that they were using unlawful procedures to collect an unauthorized tax” (doc 30, tr at 20).


. As a threshold issue, the People argue that the Leopold Foundation may have profited from the exhibition. If so, the Paintings would not be covered by the statute since its protection applies only if the <mask> ex*990hibitor receives no profit from the exhibition in New York. Based on information provided by the Museum, the court is satisfied that the Leopold Museum (which, for purposes here, is synonymous with the Leopold Foundation) is a not-for-profit entity under Austrian law and that the amount of money it received in connection with the exhibition at the Museum ($60,000 and a portion of the profits from catalogue sales) simply defrayed the costs incurred by the Leopold Museum in connection with the exhibition. Thus, the lender did not profit from the New York exhibition.


The parties agree Trine is not subject to the general jurisdiction of California because she does not have substantial, continuous and systematic contacts with the state. ( Perkins v. Benguet Consol. Mining Co. (1952) 342 U.S. 437, 445-446, 72 S.Ct. 413, 96 L.Ed. 485.) To determine whether specific jurisdiction exists, we are required to consider the " 'relationship among the defendant, the forum, and the litigation' .... [Citation.]" ( Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404.) California may exercise specific jurisdiction over a <mask> defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the forum's assertion of personal jurisdiction over the defendant " 'would comport with "fair play and substantial justice." ' [Citation.]" ( Vons , supra , 14 Cal.4th at pp. 446-447, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)


Moreover, the sole remedy provided within section 1194 for an operator’s refusal to submit to a chemical test is an administrative one. The commissioner only may revoke *67the person’s license, permit or <mask> operating privilege if the hearing officer is satisfied at the completion of the hearing that the operator was given the proper and sufficient warning of the effect to such refusal and the person persisted in his or her refusal. Again, this remedy of revocation is distinguishable from those remedies available to a court under section 1800 of the Vehicle and Traffic Law following a person’s conviction for a traffic offense.


Eael, 0. These are actions to recover money collected from the plaintiff, upon what is alleged to be a void assessment made in 1865 upon land of plaintiff, situated in the town of Hamburgh, Erie county. The principal allegation of error in the assessment is that the land was assessed in personam as the land of a resident of that town, and not as <mask> land. I believe the assessment was correctly made. The statute (1 R. S., 388, § 1, Edmonds’ ed.) provides, that all lands within the State owned by individuals or by corporations shall be liable to taxation; and hence this land was liable to taxation somewhere. It is further provided (2 R. S., 389, § 1) that every person shall be assessed in the town or ward where he resides, when the assessment is made, for all lands then owned by him within such town or ward, and occupied by him or wholly unoccupied. Section 2 provides that land occupied by a person other than the owner may be assessed to the owner or occupant, or as non-resident land. This section undoubtedly means that when the owner and occupant both reside in the town where the land is situated, the land may be assessed to either. When the owner does not reside in the town and the occupant does, it must be assessed to the occupant; and when neither of them resides in the town it must be assessed as non-resident land. By no other construction can I see how occupied land can be assessed as non-resident land as the statute as to the taxation of non-resident land provides that land occupied by a resident of the town shall not be taxed as non-resident. (1 R. S., 392, § 13.) Section 3 provides that unoccupied land not owned by a resident of the town shall be assessed as non-resident land, and section 9 provides that the assessors shall prepare an assessment roll and insert therein the names of the “ taxable inhabitants ” of the town. Taking all these provisions of the statute together, it seems to me quite plain that there is no authority *102for placing upon the assessment roll for a tax in personam the name of any person not an inhabitant of the town.


Plaintiff was the sole witness to testify in this case tried without a jury. She testified — and I find — that she lived on the top flooor of a five-story walk-up multiple dwelling. The *277area is a known high-crime area and the building itself was visited by police about a half-dozen times during the preceding two years, investigating assaults, burglaries, robbery and narcotics use. The corridors, stairs and roof of the building were regularly habituated by <mask> drug addicts who ministered to their cravings on these premises. From the roof, a fire escape led to the ground, the plaintiff’s bedroom window being at the first platform below the roof.


A suit to set aside a separation agreement is not within section 232 of the Civil Practice Act which provides for service by publication in certain actions. Nor does such an action fall under section 235 of the Civil Practice Act which provides for personal service without the State in those actions in which an order for service of the summons by publication may be made. This cause of action which seeks to set aside the separation agreement seeks an in personam judgment. Since the defendant is not a resident of this State and was served outside the jurisdiction of the State, and has not made a general appearance, no valid personal judgment can be rendered against him determining that the separation agreement was invalid. (Jackson v. Jackson, 290 N. Y. 512; Star v. Star, 127 N. Y. S. 2d 481.) Nor may this court award alimony or a money judgment against a <mask> defendant who is served outside the State and has not appeared generally, in the absence of prior sequestration or seizure of defendant’s property in this State. (Geary v. Geary, 272 N. Y. 390; Matthews v. Matthews, 247 N. Y. 32; Odiens v. Odiens, 265 App. Div. 641; Patnode v. Patnode, 85 N. Y. S. 2d 788; D’Ambrogio v. D’Ambrogio, 193 N. Y. S. 2d 130.)


. The State’s argument that New York State resident commuters bear a heavier tax burden than <mask> commuters is seriously called into doubt by reply papers submitted by plaintiffs. The court notes that when a State attempts to rely on general forms of taxation, the courts “ordinarily cannot even begin to make the sorts of quantitative assessments that the compensatory tax doctrine requires.” (Fulton Corp. v Faulkner, 516 US 325, 338 [1996].) Even accepting the State’s calculations, however, the court rejects its argument for the reasons that follow.


*624“[t]he court may exercise personal jurisdiction over any non-resident of the city of New York . . . as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the city of New York if, in person or through an agent, he . . . “transacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New York.” (Emphasis added.) CCA 404 (d) addresses service upon a corporation or association and provides that if service of the summons cannot be effectuated by personal delivery within New York City so as to acquire in personam jurisdiction, the corporation shall be deemed to be a <mask> of New York City. In such a situation, service of the summons, pursuant to subdivision (b), shall be made at such place as would confer jurisdiction on supreme court in a like case.


In considering the reference mandated by section 601 (subd. b, par. [2]), New York need proceed only to the point that a foreign jurisdiction, under the same operative facts involving a New York resident, would bar recovery. Ontario has legisláted a guest exclusion policy designated to prevent guest perpetrated frauds on Ontario insurance carriers. The application of this policy would seem more vital to Ontario where the fraud may be perpetrated upon Ontario’s Unsatisfied Judgment Fund itself. Ontario policy would hardly distinguish between resident guest frauds and <mask> guest frauds, on the Fund, by “ precluding ” the former and “ permitting ” the latter.


Plaintiff’s next objection to this highway tax, is, that there is no indication of the tract in which the lot is situated. By the public statutes organizing and bounding the counties and towns of the State, it appears that the town of Portville, in Cattaraugus county, is a part of the territory known as the Holland Land Company’s lands, these lands being designated by name in the various boundaries. These statutes show the townships and ranges into which such lands are divided. To designate land in Portville as being in a township and range, is to designate and name a tract of land. of which the court and all persons take notice. These tracts, bounded by the exterior lines of intersecting .townships and ranges, are accurately ascertained, and are the only tracts subdivided into lots. The designation of the premises in question as lot fifty-four, town one, range three, on the assessment roll of the town of Portville, indicates the tract, and gives all necessary particu*501lars required by law.* This does not conflict with Hubbell v. Weldon.† In a case subsequent to that, the court say: ‡ “ The number of the lot, if that can be ascertained, is the only designation which by law is made necessary, as to lands not occupied.” Moreover, there is a page of the roll, headed, “ List of lands belonging to non-residents in township number one, range three, formerly known as the Holland Land Company’s lands; ” and under such heading is a list of lands, with valuation, etc., including this lot fifty-four, town one, range three, assessed for the State and county tax. This list is continued on the next page, which is headed, “ List of lands situate in township number two, range three, of the before mentioned lands.” On the sixth subsequent page follows, under a heading that reads, “<mask> highway district number ten,” a list of lands in towns one and two, range three — ten lots in all; and on the next page, headed, “Non-resident highway district, number six,” is a list of lots in town one, range three, including this lot fifty-four. No other assessment or list of land intervenes between the lands assessed as Holland Land Company’s lands, so called, and the assessment for these highway taxes. The designation of Holland Land Company’s land may well apply to the whole, especially as this lot fifty-four, town one, range three, is found in both places. A case referred to in Blackwell on Tax Titles’§ is analogous: “ An assessment on balance of land on ranch A, 10,090 acres, at four dollars per acre, $40,360, was held valid, it appearing by the assessment roll that the rest of the ranch was assessed in lots as comprehended within the plat of a town, some of which lots were assessed to the same owner.” In the present case no owner is assessed in either place, but the same lot is assessed as non-resident in two places, contiguous, as before mentioned, under one heading, naming the Holland Land Company’s lands; and no other name or designation of a different tract comes between the two. The objection cannot prevail.


Moreover, the New York authorities are not so definitive as Sugar posits as to the burden of proof, except as to <mask> corporate defendants with only transitory assets in New York, as was the case in the most recent New York decisions cited in Sugar. (Hydromar Corp. of Del. v Construction Aggregates Corp., 32 AD2d 749; Fuller Co. v Vitro Corp. of Amen., 26 AD2d 916.)


Our state long-arm statute "extends Texas courts' personal jurisdiction 'as far as the federal constitutional requirements of due process will permit.' " M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co. , 512 S.W.3d 878, 885 (Tex. 2017) (quoting BMC Software , 83 S.W.3d at 795 ). Federal due-process requirements are satisfied if (a) the <mask> *901defendant has "minimum contacts" with the forum state, and (b) the court's exercise of jurisdiction "does not offend 'traditional notions of fair play and substantial justice.' " Id. (quoting Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 1121, 188 L.Ed. 2d 12 (2014) ).


If the factor has property of the attachment debtor, such as a contract obligation, it is subject to attachment if jurisdiction is obtained over the factor by service in this State. (Morris Plan Ind. Bank v. Gunning, 295 N. Y. 324.) The attempt to distinguish that case because the garnishee was a railroad is unavailing. That distinction would be valid were we dealing *610with a branch bank and a routine banking relationship and not a factor. It is irrelevant that this factor is an agency of a <mask> bank which may also engage in routine banking business with the attachment debtor in another jurisdiction.


Clinic is a "common word of clear import” (Matter of Sattler v City of New York Commn. on Human Rights, 180 AD2d 644, 646 [2d Dept 1992]). Its plain meaning, as reflected in several widely used dictionaries, is "a facility * * * that is devoted to the diagnosis and care of outpatients” (American Heritage Dictionary [3d ed 1992]); "a facility * * * for diagnosis and treatment of outpatients” (Webster’s Ninth New Collegiate Dictionary [1986]); "a place * * * for the treatment of <mask> patients” (Random House College Dictionary [rev ed 1982]); "a center for physical examination and treatment of ambulant patients who are not hospitalized” (Taber’s Cyclopedic Medical Dictionary [13th ed 1977]); or "an institution connected with a hospital or medical school where diagnosis, and treatment are made available to outpatients” (Webster’s Third New International Dictionary 423 [1964]).


Counsel have submitted no memoranda and the court’s independent research has disclosed no case in point. The Aggregate Trust Fund is one of the “ special funds ” created by the Workmen’s Compensation Law to serve various purposes respectively set forth. The several funds are composed of moneys which employers or their carriers may be required to pay as awards or as contributions under stated conditions. The funds are kept and administered separate and apart from each other and from the General State Fund, and are not liable for any losses or the expenses of administration of each other. They are in the order in which they appear in the statute as follows: the Special Disability Fund (§ 15, subd. 6), the Vocational Rehabilitation Fund (§ 15, subd. 9), the Fund for Reopened Cases (§ 25-a), the <mask> Compensation Fund (§ 25-b), the Aggregate Trust Fund (§ 27), the Stock Workmen’s Compensation Security Fund (§ 107) and the Mutual Workmen’s Compensation Security Fund (§ 109-d). No rights accrue to a depositor in any of the special funds except those given by the statute.


Bertram R Gelfand, S. This is a motion to fix the <mask> estate tax pursuant to section 960 of the Tax Law upon real property located at 901 Walton Avenue, Bronx, New York. Decedent died on October 11, 1973, a resident of the State of Florida. Petitioner and the State Tax Commission take opposing positions, both as to the proper method to compute the tax and the values to be used in the computation.


That opinion mentioned no prior decision. However, its clear effect is to scrap the above-quoted Wagner v. Wagner (supra) dictum and to approve the principle evolved in “ Almandares ” v. “ Almandares ” (186 Misc. 667) and followed by Westchester County Children’s Court Judge Geokge W. Smyth in Matter of “ Morgan ” v. “ Morgan ” (187 Misc. 714), namely, that if a respondent resides or is domiciled in New York City the Family Court does have jurisdiction to make or continue a support order for a <mask> beneficiary, but that the exercise of such jurisdiction is discretionary according to the particular facts. Thus, although the order entered in Adams v. Adams (supra) was reversed, the proceeding was not dismissed but remitted for further evidence ns to whether *265the support moneys would be properly applied to the children’s use (cf. “ Almandares ” v. “ Almandares ”, supra, beginning last paragraph on p. 674 and continuing to the end).


The California Supreme Court held that BMS was subject to personal jurisdiction in California for the claims of the <mask> plaintiffs. Id. at 1778-79. Applying a "sliding scale approach," it concluded that "BMS's extensive contacts with California" permitted the exercise of specific jurisdiction "based on a less direct connection between BMS's forum activities and plaintiff's claims than might otherwise be required." Id. at 1779 (citing Bristol-Myers Squibb Co. v. Superior Court , 206 Cal.Rptr.3d 636, 377 P.3d 874, 889 (2016) ).


True it is that the plaintiff and codefendant Talbot are nonresidents, and in rem jurisdiction of nonresidents in favor of a <mask> plaintiff ordinarily may not be obtained by attachment of an insurance policy issued by an insurer doing business in New York '(Vaage v. Lewis, 29 A D 2d 315, supra; Minichiello v. Rosenberg, 410 F. 2d 106; Varady v. Margolis, 303 F. Supp. 23). Nonetheless, Talbot is the employee and agent of Paley, the New York resident. Paley’s liability was created by virtue of Talbot. To separate this case into two lawsuits would be absurd. To send it to the Bahamas would be impractical. Standing alone, under other circumstances, Talbot’s motion might be granted on the authority of Seider v. Roth (supra). Notwithstanding this, the facts and circumstances here mandate a different result, based on a rationale of logic, reason, and the human equation.


Respondent school district questions the bona fides of petitioner’s residence and therefore the guardianship itself (Matter of Proios, 111 Misc 2d 252). It is provided by statute that every school district must furnish a free public school education to all residents of its district (NY Const, art XI, § 1; Education Law, § 3202). Upon the hearing, respondent school district has represented that it does not accept <mask> pupils on any basis including the payment of tuition.


I shall not controvert--thé. correctness the principle laid down by. Sir William Blackstone, in his Commentaries, cited- by., the appellants ; (1 Black. Com. 372.;) “ That alien' enemies have no rights, no- privileges, unless by the king’s special favour, during the time of war.;’.’ -but, conformably to this, doctrine, I think it may well be urged, in this case, that the benefit of the Statute of distributions ought to be extended to the kindred of the deceased, notwithstanding- their ,<mask>, as .a- -consequence resulting out of privileges granted to the,intestate by our.-government before his death.


The words “ disqualified from acting ” is susceptible of different interpretations, one that the person “ acting as such (administrator) ” is now incapable of acting, upon objection raised under subdivision 1 of section 99 of the Surrogate’s Court Act, by reason of his nonresidence and <mask>; two, that a person who would otherwise be “ entitled to such appointment ” were it not for his alienage and nonresidence, shall now be entitled to designate and have appointed on his application *747a trust company as administrator. The latter interpretation is the one sought by the petitioner. If the amendment had read “ irrespective of whether such person would himself be disqualified from acting or to act by reason of his being an alien non-resident of this state ” there would be no doubt two situations envisaged by the Legislature and the pattern of appointments radically changed solely to the benefit of trust companies. (Italics supplied.)


. The term "suspect” was long ago used by the United States Supreme Court in Korematsu v United States (323 US 214, 216 [1944]) to describe a classification based on race, but has since been extended to include classifications based on national origin and <mask>. Classifying a group as "suspect” does not infer anything sinister about it. To the contrary, a group so classified is afforded special protection.


To sustain the first of these contentions, a very elaborate and able argument was presented by the learned counsel for the appellants. JBut we do not think it necessary to pass upon that question because, in our view, a correct construction of the treaty is equivalent in its effect to a determination of that contention in favor of the appellants. The treaty, by virtue of the Constitution of the United States, is a part of the supreme law of the land, and pro hao vice, it supersedes all local statutes that contravene its provisions. We think the manifest intention of the treaty is to put the alien persons described therein, in respect to the rights it secures to them, precisely upon the same footing as citizens of the State or subjects of the kingdom in which the question arises. The case is one beyond all doubt within the provisions of the treaty and affected by it, and the appellants are within the description of the persons mentioned in the treaty to whom the land would descend, were they not disqualified by <mask>. An absolute power to sell property that would have descended to them, within the prescribed time, and to withdraw the proceeds thereof, is given by the treaty. This power is to sell the fee or whatever descendible interest or property there may be, and receive and enjoy as absolute owner the proceeds of the sale. The revisors of our statutes (3 ft. S. [2d eel.], 589) say: “ In reason and good sense there is no distinction between the absolute power of disposition and the absolute ownership, * * * it is an affront w common sense to say that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure.” And they framed a law which was enacted by the legislature, providing that when the grantee of a power is authorized by the power to dispose of the entire fee of the land for his own benefit, he is entitled to an absolute fee. (1 ft. S. [1st ed.], 732, §§ 81, 82, 83, 84.) In principle it is difficult to see why any distinction should be made between the effect of such a power given by law or by will or deed. The “affront to common sense ” is equally apparent in either case if the possessor of the power may sell when he chooses and dispose of the proceeds as he pleases.


Upon the supposition, however, that the intestate was legitimate, the question arises whether the effect of the treaty referred to was to relieve his brothers and sister from the incapacity to take lands arising from their <mask>. The treaty is a part of the supreme *193law of the land. The first article abolishes every kind of droit daubaine between the two contracting parties, their States, citizens and subjects. The term droit d’aubame includes escheats and the causes thereof. (Lawrence’s Wheat. Int. Law, 166.) It is immaterial to inquire what else it includes, as the State has released any right of escheat which it had. The second article of the treaty provides that “where, on the death of any person holding real property within the territories of one party, such real property would descend on a subject or citizen of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged according to circumstances.” Article third relates to personal property. The fourth article provides that “in case of the absence of the heirs, the same care shall be taken provisionally of such real and personal property as would be taken in a like case of property belonging to the natives of the country, until the lawful owner,, or the person who has a right to sell the same according to article second, may take measures to recover or dispose of the inheritance.” We are clearly of opinion that these provisions removed from the brothers and sister of the intestate the disqualification of their alienage. A power thus conferred by Jaw upon aliens to sell lands, the only impediment to their complete ownership of which is their alienage, necessarily implies a power to convey the whole estate therein. For they could not exhaust the power except by selling all their estate in' the lands, nor unless they made such a conveyance as would transmute the title thereto. In short a sale is nothing more or less than a transfer of ownership. The fourth article of the treaty treats the right conferred by the second article as a receiving or disposing of the inheritance. No doubt the intent was to confer the power to take and hold lands. Any other construction would frustrate the treaty. An authority to sell lands and appropriate the proceeds of the sale is equivalent to a grant of the ownership thereof. (See 1 R. S., 732, §§ 81-85.) Nor can a man sell lands which he was incapable of taking and holding. The limitation of two years in the second article has ceased to be of any importance, for the reason that before the expiration of that period the legislature of this State passed the act referred to, whereby the grantors *194under whom the defendant holds were expressly authorized to take, hold, sell and convey the lands in controversy. The intestate’ died May 15, 1866, and the act was passed April 28, 1868. Surely no greater effect should be' given to the limitation of two years than would be given to a condition of the like import. In that view of the subject the disqualification of alienage was removed by the treaty-making power, upon condition that the property should be sold within two years from the death of the intestate. Before the expiration of that period, however, the State which imposed - the disqualification, in the exercise of a co-ordinate power over this subject, abolished that disqualification. The condition that the land should be sold within a limited period was thus changed into a power to take and hold' the land without any condition whatever. Upon the death of the intestate therefore, the' estate vested in his brothers and sister, subject, however, to the contingency of being divested by a non-performance of the condition. But the removal of their disqualification to take and hold lands before' the- time limited for the performance of the condition, dispensed with the performance thereof and at once vested the estate absolutely in them. (Hall v. Hall, Ct. of Appeals, MSS.)


That interpretation was further solidified in Truax v. Raich (239 U. S. 63, 35) .where the court struck down a statute of the State of Arizona which required that employers of more than five workers employ not less than 80% ‘1 qualified electors or native-born citizens of the United States or some sub-division thereof.” The court there observed i(pp. 41-42): “ It is sought to justify this act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the .State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. Butcher’s Union Co. v. Crescent City Co., 111 U. S. 746, 762; Barbier v. *1004Connolly, 113 U. S. 27, 31; Yick Wo v. Hopkins, supra; Allgeyer v. Louisiama, 165 U. S. 578, 589, 590; Coppage v. Kansas, 236 U. S. 1, 14. If this could he refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act proceeds upon the assumption that ‘ the employment of aliens unless restrained was a peril to the public welfare. ’ The discrimination against aliens in the wide range of employments to which the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their <mask>, the right to obtain support in the ordinary fields of labor is necessarily involved. It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not ,be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration —to admit or exclude aliens — is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, .instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.”


5. That the next of kin, in case of Ferrié’s illegitimacy, are entitled, is therefore clear, and although from being nonresident aliens, they are disqualified from administering, that disqualification may be removed by a change of residence to New York, and in default of their administering, the Public Administrator in this county is entitled to letters before creditors and strangers. Their <mask>, however it affects the mere question of administration, affords no reason for disregarding their claims as to the property. In that respect their standing here is not a matter of comity, but of strict right, and there is no tribunal in any civilized country, I hope, where their rights would not be respected. I must therefore remain of the same opinion, as expressed on the former hearing of this case, and direct a commission to be issued as already determined. That commission must issue, however, in the ordinary form, and should be under the supervision of a person appointed by this Court. The commission rogatovre, invoking the aid of foreign tribunals, in the form suggested by the counsel for the French claimants, presents no advantages, and is exposed to the objection that it removes the investigation from the control of this Court, and from the operation of *265those rules of evidence which prevail in American tribunals.


*340In Graham v Richardson (403 US 365 [1971]), the Supreme Court held that State welfare laws which conditioned benefits on citizenship and duration of residency violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Court noted that it has long been settled that the Equal Protection Clause entitles both citizens and aliens to the equal protection of the laws of the State in which they reside, and that “the Court’s decisions have established that classifications.based on <mask>, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny” (403 US 365, 371-372). Thus, wrote Justice Blackmun, “[a]liens as a class are a prime example of a ‘discrete and insular’ minority (see United States v. Carotene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate.” (403 US 365, 372.)


“[Governmental action which classifies persons by race is subject ‘to strict scrutiny and will be sustained only if [it is] suitably tailored to serve a compelling state interest’ ([City of Cleburne, Tex. v Cleburne Living Ctr., 473 US 432,] 440). ‘[T]he Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments’ (Adarand Constructors v Pena, 515 US 200, 222). ‘The strictest standard of review, requiring the State to show that the classification is necessary to promote a compelling governmental interest, traditionally applies where the classification is deemed suspect, i.e., based on race, <mask> or nationality . . .’ (Matter of Joseph LL., 97 AD2d 263, 264-265, affd 63 NY2d 1014).” (Brown v State, supra at 321.) It must also be noted, however, that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” (Turner v Safley, 482 US 78, 89 [1987].) “[S]uch a standard is necessary if ‘prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations.’ ” (Id., quoting Jones v North Carolina Prisoners’ Labor Union, Inc., 433 US 119, 128 [1977].) “The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.” (Overton v Bazzetta, 539 US 126, 132 [2003].) The foregoing is applicable to petitioner’s constitutional right to freedom of speech.


1. To follow defendant’s equal protection argument, this court will accept, for the sake of this discussion, defendant’s contention, that is: there are two classes. If that were so, the defendant does not raise the issue of “suspect classification” or “fundamental interest”. Suspect classifications are based upon <mask>, national origin and race. Fundamental interests include voting, travel, procreation, the right of free speech, the right of a criminal defendant to appeal, and, perhaps, the right of privacy. Therefore, defendant has not made a case for a “strict scrutiny” test (Alevy v Downstate Med. Ctr., 39 NY2d 326 [1976]). Thus, defendant’s equal protection argument is subject to the less strict and more lax standard of rationality which tests whether the challenged classification bears a reasonable relationship to some legitimate legislative objective (Matter of Allen v Howe, 84 NY2d 665 [1994]; Alevy v Downstate Med. Ctr., supra). This test has been applied with great indulgence especially in the area of economics and social welfare (Alevy v Downstate Med. Ctr., supra).


The Supreme Court has declared that certain categories of classifications such as race, national origin and <mask> to be presumptively “suspect” or “invidious” under the Fourteenth Amendment. (See Loving v Virginia, 388 US 1; Korematsu v United States, 323 US 214; Graham v Richardson, 403 US 365.) But, the reach of the Fourteenth Amendment goes much further than simply to the “suspect” classifications — it is intended to abolish “all caste-based and invidious class-based” discrimination. (Plyler v Doe, 457 US 202, 213.)


As the case under consideration is not provided for by the statute, we must look to the common law for our guidance. Aliens are incapable of taking by descent, or inheriting, for they are not allowed to have any heritable blood in them ; wherefore, if a man leaves no other relations but aliens, his lands will escheat. 2 Black. Comm. 249. An alien may take by purchase, and may maintain an action for the land, which cannot be defeated by the defendant, on the ground of *16the plaintiff’s <mask>; but the people may interfere, and diveg(. tpe apen 0f pis title, by office; and no title vests in the people until Office is found. An alien, however, cannot take by descent, curtesy, or dower, or by any other title created by n ,, act of law. Gansevoortv. Lunn, 3 Johns. Cas. 109. It would seem, therefore, by the above authorities, that the ancestor of the plaintiff being an alien, could not inherit the estate left by his brother Felix, because he had not in him any inheritable blood. In Levy v. McCarty, 6 Peters, 102, Judge Story held, that an alien has no inheritable blood, and can neither take land himself by descent, nor transmit land from himself to others by descent; which the judge considers common learning, and requires no reasoning to support it. If any mediate ancestor through whom the party makes his pedigree, is an alien, that is a bar to his title as heir. It cannot, it appears to me, be necessary to pursue the subject further, as the result plainly is, that Thomas Fitz Simmons being a naturalized citizen previous to the death of his brother Felix, was his rightful heir, to the exclusion of Patrick, who could only claim inheritance through his father, an alien, and who by law being incapacitated to inherit himself, could not transmit an inheritance to his heirs. Where there is a failure of inheritable blood, by reason of alienism, the lands do not escheat but go to the next heir. 7 Johns. R. 214. The judgment of the supreme court ought to be affirmed.


Our equal protection guarantees, both under the federal and state constitutions, seek to “keep[] governmental decision makers from treating differently persons who are in all relevant respects alike.” Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 465 (Ky. 2011) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)) (internal quotation marks omitted). Classifications are not per se unconstitutional, however. Vision Mining, 364 S.W.3d at 465. Rather, classifications are subject to different levels of judicial review based on their content. Id. The highest level of review, “strict scrutiny,” applies when a classification affects a fundamental right or suspect classification, such as race, <mask> or ancestry. Steven Lee Enters. v. Varney, 36 S.W.3d 391, 394 (Ky. 2000). An intermediate level of review, “heightened scrutiny,” applies to classifications such as gender or illegitimacy. Id. The lowest level of review, “rational basis,” applies to statutes that merely affect only social or economic policy. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 46 (Ky. 2019); Zuckerman v. Bevin, 565 S.W.3d 580, 595 (Ky. 2018); Varney, 36 S.W.3d at 394-95.


The plaintiff took possession of the property, has spent some money in making repairs and alterations, and,_ although it does not appear that his title has been- assailed or even questioned by any one, he has brought this action apparently to settle the title and obtain an adjudication as to his rights in and to the premises in question. He has made as defendants the brothers, Abner, Charles, Edward, Timion and George Burridge, and the sister, Fanny Mather, in every case, adding in his summons after their names, the words, “ if living, and if dead, his heirs-at-law.” Also he has made the People of the State of Hew York a party defendant. Subsequently, by order, the defendant George Harris, as executor of the will of Caroline Burridge, deceased, was brought in as a,party. He has answered, as have also the People of the State of Hew York; lout none of the other defendants have appeared or -answered in the action. Very little is actxrally controverted by either answer, except that, in a number of instances, there are formal denials of knowledge or information sufficient to form a belief as to some of the plaintiff’s allegations which, in brief, set forth the -facts about as summarized above. Defendant Harris controverts the value of the premises as- stated in the complaint, and alleges that the complaint contains certain propositions of law which he leaves to the decision of the court, and alleges that this court has no jurisdiction to grant the equitable relief asked for by the plaintiff as against the estate in his charge. It should be mentioned in this connection that there was made by the citizen brothers, Robert and William Burridge, -an affidavit, dated Hovember 30, 1874, the purport of which was, that they were the sole heirs at law of Alexander Burridge, deceased. The affidavit states, however, that said Alexander Burridge left him surviving five other brothers and one sister, correctly stating their names, but says that all of them are aliens, and reside in England, and never became citizens of the TJnited States, and “ that they are not legally entitled to any portion of the real estate of said Alexander Burridge, deceased, as deponent is informed the *438law is.” The then surrogate of Oneida county indorsed this affidavit “ Approved ” and signed ¡his name; and this instrument was recorded in the Oneida county clerk’s office, on December 2, 1874, just after the giving of the deed above mentioned by the two resident brothers to the widow. This instrument is set up in the amended complaint, where it is characterized as a decree of the Oneida county Surrogate’s Court; and the facts with reference to that are denied upon information and belief by the defendant People of the State of ¡New York, who also alleges that the decree was made without defendants being parties thereto, and denies the jurisdiction to make any decree which would be binding upon the defendants. The defendant People of the State denies knowledge or information sufficient to form a belief with reference to the facts alleged regarding the sale, and puts in issue the descending of the property to the brothers and sister; in fact, • the answer of the People denies knowledge or information sufficient to form a belief as to most of the allegations in the complaint, but admits that the plaintiff has an estate in fee of one undivided one-fourth, which was the aggregate of the interest received by the plaintiff which originally vested in the brothers ¡Robert and William, and alleges that the remaining three-fourths have escheated to the State. It seems to be agreed by all that the property 'is so circumstanced that actual partition thereof cannot be made without prejudice to the rights of the parties, and I so decide. We thus have a plaintiff who makes several claims, the first being that he is unable to. state what his rights in the premises are, and asks that they be adjudicated, but who subsequently asks that, in case it is determined that his grantor was not the sole owner of the premises, the moneys paid by him to the defendant Harris, as executor, therefor be adjudged to be real estate and substituted "in place of the premises above described, and asks that defendant Harris, as executor, be adjudged to hold said money in trust for the rightful owners thereof, one of which he claims to be, in certain contingencies. We have the defendant Harris claiming that plaintiff has no title whatever in or to the funds in his bands, and the defendant the People of the *439State of New York claiming three-fourths of the property and an accounting with the plaintiff for rents, etc., which he has received. To unravel all of this, it becomes necessary, firstly, to consider the effect of existing statutes in connection with the <mask> of the six heirs and the rights of all of the parties, commencing at the date of the death of Alexander Burridge, in November, 1874. -At that time the brothers Robert and William were citizens of the United States*; and their right to- take at least one-eighth each is hot questioned and cannot be. ' The point is, however, raised that, inasmuch as the other six heirs were aliens, these two brothers, being the only heirs, would take the entire estate. This is not so. Callahan v. O’Brien, 72 Hun, 216.


With the exception of the respondent’s mother, Mrs. Ann Perrott, he himself is the nearest relative of the decedent who is not disqualified by <mask> from administering on this estate. Mrs. Perrott has filed a renunciation of her claim, so that her son’s title to the letters is undisputed, so far as relates to prior rights of any relatives of the decedent nearer of kin than himself. It is insisted, however, that, as such nearer kindred are in existence, and, although aliens, are entitled to this estate to the exclusion of the respondent, he has no lawful right to the letters which have been granted, and should be required to surrender them to"the Public Administrator. The claim rests- upon a disputed construction of the statutory provision relating to the administration of estates (Rev. Stat., part 2, chap. 6, title 2, sec. 27). That provision is as follows: u Administration in case, of intestacy shall be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to his widow; second, to his children; third, to the father; fourth, to the mother; fifth, to the brothers; sixth, to the sisters; seventh, to the grandchildren; eighth to any other next of kin who would be entitled to share in *11the distribution of the estate. ..... If none of the said relatives . . . will accept the same, then to the creditors of the deceased .... In the city of New York, the Public Administrator shall have preference after the next of kin, over creditors and all other persons.”


In May, 1973, the Supreme Court decided the case of Frontiero v Richardson (411 US 677) by a vote of eight to one. There the court felt compelled to strike down a Federal law which provided that wives of male members of the armed forces were entitled to housing and medical benefits without regard to the facts of the wives’ dependency. Similar benefits however were denied to the husbands of female members of the armed services unless the husbands’ dependency could be demonstrated. Suit was initiated by a male dependent and his female officer-wife contending, as in the case at bar, that the existence of unreasonable discrimination based upon sex was violative of the Due Process Clause of the Constitution. Drawing upon its earlier decision in Reed v Reed, supra, the court declared (p 682): "At the outset, appellants contend that classifications based upon sex, like classifications based upon race, <mask>, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v Reed”


Turning to petitioner’s cross appeal, we find unavailing its contention that appellant’s apparent status as an undocumented alien* automatically precludes her from succeeding to her late husband’s tenancy. Considerations of citizenship and immigration status are not among the criteria for family member succession enumerated in the governing rent-control regulations (see NY City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d] [1], [3]), and such broad considerations should not be lightly imported by implication into the regulatory scheme, particularly given its remedial purpose “to prevent the grievous harm that would ensue from the wholesale eviction of family members” from their home-apartment following the record tenant’s death or departure (Festa v Leshen, 145 AD2d 49, 57 [1989], quoting Lesser v Park 65 Realty Corp., 140 AD2d 169, 173 [1988] [involving counterpart rent stabilization family member succession provisions]). While appellant’s presence in this country may well be impermissible under federal immigration law, any such transgression, standing alone, would be insufficient to justify denying her tenancy succession rights to which she otherwise may be entitled, at least where, as here, no claim is advanced or showing made that appellant took occupancy of the subject apartment through the use of false pedigree or other documentation (see generally Balbuena v IDR Realty LLC, 6 NY3d 338, 361 [2006]) or that her continued occupancy in the apartment would subject petitioner to civil or criminal penalties *10(see Recalde v Bae Cleaners, Inc., 20 Misc 3d 827 [2008]). Indeed, in the circumstances here present, adoption of the per se preclusion rule advocated by petitioner would run afoul of the spirit, if not the letter, of the New York City Human Rights Law, which makes it an unlawful discriminatory practice to refuse housing accommodations to any person based on that person’s “actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status ... or <mask> or citizenship status” (Administrative Code of City of NY § 8-107 [5] [a] [1] [emphasis supplied]). Any potential adverse consequences that may follow from a violation of the immigration laws is a matter for immigration authorities, not this court (see generally Village Dev. Assoc. v Walker, 282 AD2d 369 [2001]).


The electorate of Hesse, in which said Edward Stamm, the plaintiff, was born, became a part of the kingdom of Prussia on the 20th of September, 1866. By treaty between the United States and the kingdom of Prussia, concluded in 1828, and ever since remaining in full force and effect, it was provided, that “ where, on the death of any person holding real estate within the territories of the *37one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by <mask>, such citizen or subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation.”


It is contended that the benignant spirit of our laws should have an influence in inducing us to construe this act against the operation of the plea of <mask>. I think differently ; the act of 1784 admits the correctness of all the common law rules of descent, except those specially abolished, because it goes on to direct that in all cases not particularly provided for by this act, the common law shall govern. Such was the law until the revision of 1830, and we are bound to sustain the common law principle by the superadded sanction of legislative authority.