
    James Farley, Administrator, etc., Respondent, v. John McConnell et al., Appellants.
    (Submitted January 31, 1873;
    decided February 11, 1873.)
    The provision of the statute in reference to granting letters of administration (3 R. S., 74, § 36), which provides that, before letters of administration shall be granted, the death of the intestate shall be proved to the satisfaction of the surrogate, and that the person applying shall be examined on oath, etc., is directory merely. The jurisdiction of the surrogate to issue letters does not depend upon its observance.
    By the provision of the Constitution, making the county judge surrogate (art. 6, § 15), the former is the office and the latter an incident to it, and by the force of the enactment in the judiciary act '(chap. 380, Laws of 1847, art. 4, § 37), providing that all laws in reference to surrogates shall be applicable to the county judge, the provision of the statute (3 R. S., 77, § 43) requiring administrator’s bonds to be conditioned that he will obey the orders of the surrogate, is made to read that he will obey the orders of the county judge; and a bond thus conditioned will be deemed correct, unless it be made to appear that in the county the office of county judge and surrogate are separate.
    Defendants were contractors for the construction of a-sewer in the city of Elmira. This action was brought against them for alleged negligence in leaving the sewer open and unguarded, in consequence of which plaintiff’s intestate fell in and was drowned. The complaint alleged the death of the intestate, and the due and legal appointment of plaintiffs. The answer was a general denial. Plaintiff’s letters of administration in due form were produced in evidence. Defendants contested the validity of the appointment of plaintiff, and produced in evidence the petition of plaintiff to the probate court and the bond. The questions raised thereon were, that the petition did not show that plaintiff was examined on oath touching the manner of the death of intestate, nor did it show the manner of his death as required by 2 Revised Statutes, 574, section 26. Also, that the bond was conditioned to obey the orders of the county judge, not those of the surrogate, as required by 2,Revised Statutes, 77, section 42.
    As to the first objection, the court held that under the decision in Belden v. Meeker (47 N. T"., 307), the production of the letters established prima facie the validity of the appointment; that the statute did not require the facts directed to be proven by section 25 to be shown by the petition, and it not appearing but that they were proven, the presumption was that the statutory requirement was complied with, but in any event the jurisdiction of the surrogate did not depend upon such compliance. That the facts giving jurisdiction are recited in section 3, and a neglect to observe the statutory duty, imposed by section 25, did not impair the jurisdiction acquired under section 3.
    As to the second objection—that under the Constitution (art. 6, § 15) and the judiciary act (chap. 280, Laws of 1847) the provision of section 42, as to condition of the bond, was made to read, to obey the orders of the county judge in ordinary cases—that although the Constitution provides for the election of a separate officer to be surrogate in certain cases, this was an exception, not the rule; and if in this case provision had been made for a separate officer, it should have been made to appear, to present the question.
    Other questions were raised as to contributory negligence similar to and disposed of upon the authority of Ihl v. 42f7 St., etc., P. JR. Go. (47 F. T., 317).
    
      James L. Angle for the appellants.
    
      Smith c& JBJill for the respondent.
   Per Curiam

opinion for affirmance.

All concur.

Judgment affirmed.  