
    Clista M. McCarthy, as Administratrix, etc., of Edward Sandell, Deceased, Respondent, v. The Supreme Court of the Independent Order of Foresters, Appellant.
    
      Jurisdiction of a Surrogates Court to issue letters of administration—it may be attacked in an action which has been brought by the administratrix —facts not before the Surrogates Court cannot be shown to sustain it.
    
    Where letters of administration are issued hy a Surrogate’s Court upon a petition in which the only fact stated conferring jurisdiction on the surrogate to issue the letters is that the decedent wás a resident of the county in which the court is held, if, upon the trial of an action brought by the administratrix, it appears that the decedent was not a resident of the State of New York, but was a resident of Canada, the administratrix is not entitled to maintain the action.
    In such an action.the jurisdiction of the Surrogate’s Court to issue letters may be attacked, and the letters cannot he upheld by showing facts which were not before the Surrogate’s Court when the letters were issued, e. g., that property of the intestate was brought into the State of New York after his death.
    Appeal b'y the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 7tli day of October,- 190é, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived.
    
      O. P. Stockwell, for the appellant.
    
      Edmund J. Plumley, for the respondent.
   Williams, J. :

The judgment should be reversed on questions of law and a new trial ordered, with costs to the appellant to abide event.

The action was brought to recover the amount of a beneficiary certificate for $1,000. issued by defendant upon the life of Edward Sandell. The insured was, up to the time, of his death, a resident of Ontario, Canada. He died July 23, 1903, in Canada, intestate, leaving no wife, but two infant children. The defendant is a foreign corporation, organized under the laws of Ontario, but duly admitted to-do business in the State of Hew York. The plaintiff procured herself to be appointed administratrix of the estate of the insured in the county of Erie and brought this action in that county. Ho question is made but that the defendant is liable to the estate of the insured for the amount of the certificate. The defense is.that the surrogate of Erie county had no jurisdiction to appoint the plaintiff administratrix of the estate, and that she should not be permitted to recover the amount of the certificate. In the petition for administration the plaintiff stated that the insured died in Ontario, and was at the time of his death a resident of Erie county, Nevi York; that he died seized of no. real estate situated within the State of Hew York nor chattels. The letters issued to the plaintiff recited that the insured was late of Ontario. It appeared undisputed upon the trial that the insured was not a resident of this State when he died, but was a resident of Canada. The plaintiff herself so testified. The only fact stated in the petition giving the surrogate of Erie county jurisdiction to appoint plaintiff administratrix was residence in Erie county. (See Code Civ. Proc. § 2476.) When on the trial this fact was shown.and conceded to be untrue the invalidity of the letters was established and plaintiff could not maintain the action. There is no question but that the letters could be so attacked for want of jurisdiction in this action. (Code Civ. Proc. § 2473; Warren v. Union Bank of Rochester, 157 N. Y. 259, 273 ; Hoes v. N. Y., N. H. & H. R. R. Co., 173 id. 435, 442 ; Ziemer v. Crucible Steel Co., 99 App. Div. 169, 171.)

The decree granting plaintiff letters cannot be upheld now, by showing that property of the insured was brought into the State after his death. Ho such facts were presented to the surrogate and he did not act on them. His jurisdiction cannot be upheld now by

showing, facts which were not before him nor acted upon by him when he made the decree. ' ■ .

This is a very bold case of attempting to import a litigation from Canada, where it belongs, to .the State of Hew York, a practice that was severely condemned in the cases above cited.

The matter should go to Canada where it belongs.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  