
    In the Matter of the Estate of Alexander McGarren, Otherwise Known as Alexander McGoughran, Deceased. Hester McGarren, Appellant; Henry McGoughran, Administrator, etc., of Alexander McGarren, Deceased, Respondent.
    First Department,
    April 20, 1906.
    Husband, and wife — surrogate has power to decide whether Supreme Court acquired jurisdiction in action to annul marriage—when due service of summons in that action shown—application by wife to revoke letters of administration refused when marriage was annulled.
    In deciding an application by a wife, whose marriage has been annulled, to revoke letters of administration upon her former husband's estate, the surrogate has power to determine whether in the action for annulment the service of the summons ’upon the defendant was sufficient to give the court jurisdiction.
    But 'no such power exists where jurisdiction in the action for annulment depended upon a fact litigated therein and adjudged in favor of the party claiming jurisdiction. In such case the record is conclusive until set aside or reversed in a direct proceeding.
    When the record in such action for annulment shows that due service was made upon the defendant and the affidavit of the server states that he handed the summons to the defendant, who threw it away, that he left it by her on the sidewalk, and that it contained a notice of the nature of the action, etc., the server having been examined in open court as to these facts and in addition it being shown that the defendant acknowledged to a third person that she had been served, a finding by the surrogate that the Supreme Court acquired jurisdiction is warranted although the defendant in the proceedings before tlie surrogate three years later presented her affidavit denying due service.
    . Under such circumstances a revocation.of letters of administration oh the ground . that the applicant was .the intestate’s wife should be refused.
    ■ Appeal by Hester' McGarren from an order of the Surrogate^ • Court of the county of Hew York, entered in said Surrogate’s Court on the 8th day of December, 1905.
    
      Edward W. S. Johnston [Maurice B. Blumenthal with him on the brief, Danie W. Blumenthal, attorney], for the appellant.
    
      Daniel D. Sherman, for the respondent.
   Clarke, J.:

This is an appeal from an order of the Surrogate’s Court, of the county of Hew York denying the petition of Hester McGarren asking for the revocation of letters of administration theretofore granted to ■ Henry McGoughran on the estate of Alexander McGarren or McGoughran, and the appointment of said petitioner as administratrix of said estate. The petitioner alleges in the- petition 'that said Alexander McGarren departed this .life oh June 25, 1905, being at the time of his death a resident of the city and county of Hew York, and that she is the widow of the said Alexander McGarren that lie left him surviving only his widow and eight cousins; that he left a large .estate of personal property and two pieces of real property; that a petition, verified by the respondent Henry McGoughran, had been filed on June. 29, 1905, praying that letters of administration- be issued to him, and a decree of the Surro/gate’s Court,had been entered appointing the said respondent such ‘ administrator; that said petition did not refer to this petitioner at all; that such respondent was incompetent and disqualified to act..as such. administrator, and that petitioner had a prior right to be appointed administratrix of tlie estate; that neither she nor anybody representing fier had made any objection to the appointment "of the said Henry McGoughran as such administrator, for the reason that she had no notice whatever of the pendency of said application until' after the issuance of such letters of administration, and, no citation had been issued to her. Answering said petition the administrator alleged that the. petitioner was not the widow of the decedeh-t j that she had been married to the decedent on October 1, 1898, but respondent submitted a certified copy of the judgment roil in the suit of Alexander McGarren v. Hester McGarren in the‘Supreme Court in the county of New York, which judgment annulled the marriage of the petitioner with the deceased on April 1, 1902, and presented the affidavits of nine persons tending to show that the petitioner appellant had full knowledge of the proceedings in the annulment suit from and after the service of the summons therein upon her; that she knew of the judgment in 1902, nearly three years prior to the death of the deceased; that she took no steps to set said judgment aside prior to the death of the decedent, and that she had full knowledge of the respondent’s application for letters of administration, approved of his application and conceded his right until some time after the entry of the decree granting administration to the respondent.

The question really involved here is the validity of the judgment annulling the marriage. If that is a good judgment, concededly the appellant has no right of administration. The validity of said judgment is attacked upon the ground that the court in which it was rendered did not acquire jurisdiction of the defendant, in that the summons therein was not served upon her. Incidentally the question is raised whether the surrogate has power to pass upon the question of jurisdiction, because, while in his order no such determination is' made, in his opinion on the motion the learned surrogate said: “Upon these facts the inquiry that her counsel asks me'to make is not as to whether any service of summons was made, but as to whether, upon the facts, what was done in the attempt to serve her amounted to a regular and sufficient compliance with the, requirements "of the law as to the service of a summons in the Supreme Court. This I decline to do upon the ground that I am without jurisdiction.”

Section 1154 of the Code of Civil Procedure provides that “A final judgment, annulling a marriage, rendered during the lifetime of both the parties, is conclusive evidence of the invalidity of the marriage in every court of record, or not of record, in any action or special proceeding, civil or criminal.” The judgment entered April, 1902, was rendered during the lifetime of the parties. The marriage upon which the petitioner relies to establish her claim is identified and conceded to be the marriage annulled by said judgment. The entire record of that judgment is before us, and was before the surrogate, and shows that the Supreme. Court itself inquired into the facts necessary to give it jurisdiction and determined' for itself that it had acquired jurisdiction to render its judgment; that is, that its-. process, was regular in form and was duly served oh the defendant. In, the decision filed in said 'suit it is stated “ and due proof having been made of personal service' of the summons upon the' defendant in this action.” " In the judgment, and decree it is stated: “ Now, therefore, on reading and filing the summons and complaint in this action, and proof of personal serv- ■ ice of the summons herein on the defendant herein within the State of New York.” The affidavit of service of Joseph-N. Starin, verified October 10, 1901, a part of the judgment roll, after stating the facts showing Ifis knowledge'and acquaintance with the defendant, proceeds: “ On the 5th day of June, 1901, at the northwest corner ■of 21st street and Ninth Avenue in tile City qf New York at,-3.30 p. M.'on that'day, he served the. annexed summons on the said Hester HcGarren by delivering a copy of the same.- to lier and ' leaving the same with her. Deponent further says that- when he served the said summons upon the said Hester HcGarren as aforesaid, he .asked her if she was Mrs. McGa-rreri and she said yes; that deponent thereupon said to her 41 have a paper to summon yon,’ and handed a copy of annexed summons to her ;■ that she thereupon said ‘I won’t take'a summons, I don’t want your summons paper,’ and refused to take it and thrust it away and allowed it to fall to the sidewalk; .and that deponent thereupon left - the said • summons by her and departed. Deponent further says that the said- copy of the annexed summons so delivered - to said'Hester McGarrón by him as aforesaid, had the words Action to annul a marriage ’ legibly written upon the face thereof.” Starin was examined in open court before the learned judge who granted the decree .on February 26, 1902, and testified that he served the summons in-the action on the defendant June 5, 1901, at the northwest corner of Twenty-first street and Ninth avenue in the city of New York at about three-thirty o’clock in the afternoon ; that he offered a copy of the summons to. her ; that he told her it was a summons; • that he left the copy with, her and that it had the words Action to annul á marriage ” Written plainly upon "the paper.. ’

Thomas Dusenberry testified that he was special officer of the Equitable Building Safe Deposit vaults; that he had known the defendant for twelve years, and that at the Equitable Building, outside of the vaults, he had an interview with Iier on or about June 25, 1901. The testimony proceeds: “ Q. Was anything said at that interview concerning this suit brought by Alexander McGarren to annul his marriage with Hester McGarren? A. Yes, she told me— Q. What was said — what did she say to you about this suit ? A. She said that she had been served with a summons and complaint. Q. Was anything else said? A. She said that the officer had handed a summons and-complaint to her and she threw it down on the sidewalk, he picked it up again and placed it on her arm.” The evidence, therefore, is amply sufficient to sustain the statement of the -decision' and the decree as to the fact of personal service of the summons.

In Ferguson v. Crawford, on the second appeal (86 N. Y. 609), Judge Batallo said: The judgment in the McFarquhar case was regular on its face and every intendment should be in favor of its validity; and although we have held that the defendant therein was at liberty to show, if he could, that the court never acquired jurisdiction of his person, yet the burden of establishing that fact was upon him, and it should be established in the most satisfactory manner to deprive the judgment of its effect.”

What does the petitioner offer in this collateral attack upon a judgment most seriously affecting her status, and of which concededly she had knowledge for three years prior to decedent’s death without any step whatever being taken by her to test its validity ? Her own affidavit alone, in which she says: “ I remember the interview with the man who it was claimed was Starin, at which he claims to have served me with a summons in the said annulment action. The interview occurred on June 5th, 1901, on the public highway in ‘this city in the neighborhood of Twenty-first street and Ninth Avenue in the afternoon of that day.” The very time and place testified to by Starin; “ he * * * asked me whether my name was McGarren and said, in effect, that I should take from him a paper. In his hand was an envelope. * * * I struck Starin and I think the envelope fell on the ground; then Starin went away. The envelope was not taken by me and was never in my actual possession for a moment; Nothing was said by Starin' as tó the, contents of the envelope. He did not at any time say that lie had a summons for me,” and she denied the conversation with D.usenberry.

There is here no suggestion of fraud as was the case in Bulkley v. Bulkley (6 Abb. Pr. 307), cited by appellant. Assuming the facts stated by petitioner to be true, it was simply a defective service and not an entire want of service. But as appellant’s, affidavit corroborates the. process server in important details, as his original affidavit fully sets forth tlm occurrence, as where she denies his statements she is‘uncorroborated, and as many important statements in her affidavit as to other fapts are completely disproved by the affidavits of others, we find that she has not sustained the burden thrown upon her, and think that her collateral attack upon the judgment has failed, and that the surrogate was warranted in making the order appealed from.

We might well stop here, blit inasmuch as the learned surrogate has- expressed a conviction as to his want of jurisdiction ih the premises, we are of the opinion that he had power, to consider whether in entering the judgment annulling the- marriage the Supreme Court' had acquired jurisdiction of the pérson of the defendant. •

In Kerr v. Kerr (41 N. Y. 272) there was a proceeding before the surrogate to revoke letters of, administration. ■ An Indiana judgment .of divorce was submitted and extrinsic evidence of want of jurisdiction received. Judge Grover said *: “ The counsel for the appellant insists that it having appeared from the evidence that to determine which of the parties was the wife and widow of the •intestate,, it was necessary to inquire into and pass upon the validity of a judgment divorcing the intestate from the respondent, rendered by a Circuit Court of the State of Indiana, it was not competent for the surrogate- to decide that: question, and that lie -should: have dismissed the proceeding. In this position I do not concur. The statute expressly empowers the surrogate to determine the truth or falsity of the allegations-upon which the letters -were issued.. This includes the power' to decide every incidental question necessary for that purpose, whether such question be one of fact -or law.” And the surrogate was sustained in revoking her letters upon the ground of the invalidity, of the Indiana divorce established by extrinsic evidence. . • ,

In.Matter of Kimball (155 N. Y. 63) there was an appeal from an order of the Appellate Division affirming a decree of the surrogate denying a petition for the removal of administrators and for the appointment of petitioner. The proceeding turned upon the validity of a Morth Dakota divorce. The, surrogate determined the judgment invalid and was affirmed, Judge Haight saying: “It is equally well settled that the judgment of a court of a sistqr State has no binding effect in this State, unless the court had jurisdiction of the subject-matter and of the person of the parties, and that want of jurisdiction may always be interposed against a judgment when it is sought to be enforced, or when any benefit is claimed for or under it. * * * Such a judgment is void and of no force or effect in this State,” citing among other authorities Kerr v. Kerr (supra).

It is thus directly settled by the Court of Appeals that, upon such a proceeding as in the case at bar, the surrogate has the power to take extrinsic evidence as to the jurisdiction of the court of a sister State, and finding said court had not acquired jurisdiction, to treat the judgment so obtained as a nullity.

But the judgment here is a domestic judgment. In the leading case of Ferguson v. Crawford (70 N. Y. 253) Judge Rapallo examined with characteristic care and ability the whole question of the force and effect of judgments. After stating the then well-established ■ rule in regard to judgments of sister States, that the question of jurisdiction may be inquired into, and a want of jurisdiction over the person shown by evidence, he says : “ When we come to consider the effect of these authorities, it is difficult to find any solid ground upon which to rest a distinction between domestic judgments and judgments of sister States in regard to this question. * * * In holding, therefore, that a defense that the party was not served and did not appear, although the record stated that he did, was good, our courts must have held that such is the law of this State and the common law; and consequently that in the absence of proof of any special law to the contrary in the State where the judgment was rendered, it must be presumed to be also the law of that State. The judgments of our courts can stand on no other logical basis.”

In O'Donoghue v. Boies (159 N. Y. 87) Judge O’Brieh said : “In .case of judgments recovered in the courts of other States, which'are to, be given full faith and credit here under the Federal Constitution, the record' may be impeached for want of jurisdiction even, by extrinsic evidence, and the same is true with respect to domestic judgments. * * * These propositions have been settled in ibis court once for all in the case of Ferguson v. Crawford (70 N. Y. 253). In the opinion by Judge Rapallo,. Which covers the whole field of discussion, the positions stated are sustained by a weight of argument and a wealth of illustration which leaves nothing further to be said on the subject.” -Numerous cases are'cited, following and approving Ferguson v. Crawford.

Therefore, it seems clear that the surrogate has the same power ' to pass upon the question of whether the court had jurisdiction in .regard to domestic judgments that the Court of Appeals has directly decided that he has in regard to the judgments of sister States.

There remains one further consideration. As stated in O'Donoghue v. Boies (supra): “ There is but one solitary exception to this rule, and that is. in a case where jurisdiction depends on a fact that is litigated in a suit and is adjudged in favor of the party who avers jurisdiction. Then the question of jurisdiction, is judicially decided, and the judgment record is conclusive on that question until set aside or reverged by a direct proceeding. (Ferguson v. Crawford, supra, at p. 265.) ” The record in the annulment-suit shows that witnesses were called for the plaintiff and examined upon the question of the service of -the summons. I do not think that fact brings the case within the exception. It was a trial on default. There was no appearance, no answer, no witnesses for the defense and. n„o cross-examination. I do not think the fact was “ litigated ” within, the meaning of the rule. If so, it would have been a “ litigated fact ” upon the affidavit of service alojie, and hence the question .could never arise in a collateral proceeding.

It follows that the order appealed from should be affirmed, with costs.

O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Order affirmed, with costs. Order filed. 
      
       See art. 4, § 1.—[Rep.
     