
    Matter of the Estate of John Montgomery Smart, Deceased.
    (Surrogate’s Court, New York County,
    January, 1916.)
    Service — of citation, how made — order for — jurisdiction of surrogate — Code Civ. Pro., §§ 796, 797, 2525, 2526, 2685.
    Where.in a proceeding for the sale of a decedent’s real estate the surrogate, under section 2685 of the Code of Civil Proeedure, directs that notice of the application to all persons interested shall be given by the issuance of a citation, service thereof must be made strictly in accordance with sections 25-25 and 2526 of said Code, and a provision of the order directing the issuance of the citation that it be served personally or by mail in the manner prescribed by sections 796 and 797 of said Code is unauthorized.
    Where, pursuant to an order for the service of the citation containing such a provision, it was served upon all resident creditors by mail, and on nonresident creditors by mailing without publication, the surrogate acquired no jurisdiction as no proper legal service of the citation had been made.
    Proceeding under section 2685 of the Code of Civil Procedure for the sale of property.
    Curtis, Mallett-Prevost & Colt, for petitioner.
    Scott, Newcomb & McLoughlin, for Constance H. Baldwin.
   Fowler, S.

This is a proceeding under section 2685 of the Code for the sale of property. The point is as to the sufficiency and regularity of the service of process. Section 2685 provides in part: “ If the surrogate, in his discretion, .entertains the application, notice of such application shall be given to all persons interested or to such persons as the surrogate by order directs to have notice,” and “ in such manner as the surrogate shall prescribe.” This gives the surrogate wide latitude as to the manner of service, but in this proceeding before the court the surrogate has fixed the manner of service by directing the issuance of a citation. Accordingly, the manner of service having been selected, the service of the process must be made strictly in accordance with the statute governing service of citation, and the surrogate has no power to alter in any way the requirement of such statute (§§ 2525, 2526). In this proceeding the order directing the issuance of a citation further provides that it “be served personally or by mail in the manner prescribed by sections 796 and 797 of the Code of Civil Procedure.” Sections 796 and 797 have no application for they apply solely to papers served in an action (§ 3333), the proceeding in question before the court being a special proceeding. Furthermore, if these sections had any application to a special proceeding, they would be excluded by the provisions of sections 2525 and 2526 of the Code. Finally, the citation in this proceeding having been served on all creditors residents of the state of New York by mail, and on creditors residents of other states by mailing, without publication, no service as provided by the statute has been made, and the surrogate has not acquired jurisdiction of the parties. If section 2685 were to be held to authorize such service, the service of a citation would become a very much less formal matter than under the previous acts. The service is not sufficient. In all proceedings begun by citation in a court which proceeds in rem care must be exercised by the surrogate in reference to the service of the citation. He has no power to vary the statute. .

Decreed accordingly.  