
    Mary White, as Administratrix, etc., of James White, Deceased, Respondent, v. The Emigrant Industrial Savings Bank, Appellant.
    Second Department,
    October 20, 1911.
    Executors and administrators —presumption of death where person has disappeared for seven years — power of surrogate to issue letters of administration — amendment of order so as to grant full letters of administration — right of administratrix to recover bank deposits owned by absentee — when determination of Surrogate’s Court conclusive —powers of temporary administratrix.
    A person who has disappeared and who has not been heard from for seven years is presumed to be dead, and at the expiration of that period the" surrogate has power to issue full letters of administration upon his estate.
    Although the surrogate only issued temporary letters of administration upon the estate of such absentee, he may amend the order and grant full letters nunc pro tunc where the petition contains all the facts necessary to authorize the granting of full letters.
    Where the Surrogate’s Court has determined that such absentee is dead for the purpose of administering his estate, the decision is conclusive until revoked or set aside.'
    
      The administratrix is entitled to recover of a bank a deposit standing in the name of such absentee.
    Although the administratrix made a demand upon the bank at a time when she held only temporary letters of administration, no additional demand was necessary where the order was amended nunc pro tunc so as to grant full, letters. -
    Moreover, the administratrix, holding temporary letters of administration was entitled after demand upon the bank to maintain an action to recover the deposit standing in the name of the absentee.
    Appeal by the defendant, The Emigrant Industrial Savings Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry B. Hammond [Richard O’Gorman with him on the brief], for the appellant.
    
      William F. Hagarty, for the respondent.
   Rich, J.:

This action was brought to recover a deposit standing to the credit of James White in the defendant bank. ' At the close of the evidence both sides requested the direction of a verdi'ct, and the trial court thereupon, with the consent of the parties, disi charged the jury and later granted the plaintiff’s motion. James White is not shown to be actually dead. In 1899 he was employed as an attendant at the Long Island State Hospital. He was a young man of exemplary habits, but was suffering, from malaria and greatly run down in general health. On April tenth of that year he left the hospital for a ten days’ vacation, and so far as known that was the last seen or heard of him. Search was instituted, inquiry made, and advertisements inserted in the papers, but without results. On April 18,1906, more than seven years after his disappearance, the plaintiff, his sister, applied to the Surrogate’s. Court of Kings county for the appointment of a temporary administrator and. a decree was granted directing that temporary administration be granted to plaintiff and that “Letters of Administration upon the goods, chattels and credits of said James White issue to the said petitioner.” Full letters were accordingly issued on April twenty-fourth. On May first following the plaintiff called at the defendant hank, produced the pass hook of the decedent and her letters of administration, and demanded payment of the account standing to the credit of said James White, which was refused. On June sixth the Surrogate’s Court amended its order of April twenty-fourth by striking out the provisions relating to temporary administration, directing the issuance of full letters, ratified and confirmed all proceedings taken under the former order and directed the order as amended to he entered nunc pro tunc as of April 24, 1906.

I think the Surrogate’s Court had jurisdiction to issue full letters of administration. The general rule that an absentee who has not been heard of for seven years may be presumed to be dead at the expiration of that period for the purpose of administering his estate, is well settled, and was last asserted by the courts in Matter of Wagener (143 App. Div. 286). If, as contended by the appellant, the court erred in issuing full letters upon an order directing temporary administration, its error was cured by the subsequent order. The petition contained all of the facts necessary to authorize the granting of full letters, and the amended order recites that the surrogate is “satisfied that the case is a proper one for the appointment of an Administratrix.” The Surrogate’s Court having jurisdiction to determine as to whether White was dead or living, for the purpose of administering his estate, its decision is con- . elusive until revoked or set aside. (Code Civ. Proc. § 2591.) No additional demand was necessary. If the order and letters issued thereunder are to be given the effect only of appointing the plaintiff temporary administratrix, her demand was good and this action maintainable. (Code Civ. Proc. § 2672.)

The judgment must be affirmed, with costs.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Judgment and order affirmed, with costs.  