
    In the Matter of the Petition of the Trustees of the Congregational Church & Society of Cutchogue.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Executobs and administbatobs—Payment of legacy.
    In a proceeding to compel payment of a legacy, the administrator’s answer denied the incorporation of petitioner, but did not set forth facts to show the claim to be doubtful, or deny its validity absolutely or upon information and belief. Held, insufficient to oust the surrogate of jurisdiction to order payment.
    Appeal from decree of surrogate directing payment by the administrator to the petitioners of a legacy and property devised to them.
    
      Jesse L. Case, for app’lt; Timothy M. Griffing, for resp’t.
   Barnard, P. J.

The petitioners ask that Dayton, the administrator of Henry Landon, deceased, pay to them, the Congregational Church & Society of Cutchogue, a legacy and property devised to them by the will of decedent. The petition shows all the necessary facts, and the proofs before the surrogate sustain in every respect the petition. The will and codicil of deceased give such society property, and the administrator admits that he had it Much more than a year had expired since he began his duties under his appointment and the legacy or property had not been paid. The administrator put in an answer and denied the fact of the incorporation of the church and society, but this fact was fully established before the surrogate. The answer does not deny the validity of the claim absolutely or upon information and belief.” It does not set forth facts to show that the claim is doubtful. This the answer must do in order to oust the surrogate of. jurisdiction to order payment. If it be desired to deprive the surrogate of jurisdiction, facts must be set up in the answer so as to render it doubtful as to the petitioner’s claim. Matter of Macaulay, 94 N. Y., 574; Hurlburt v. Durant, 88 .id., 121; Moorhouse v. Hutchinson, 4 Dem., 362.

This answer sets up no facts whatsoever in opposition to the petition. Facts should be set up affirmatively or such a denial made as the case requires should be interposed. Upon the material facts set forth in the petition the proof is abundant, in fnct the witnesses Wickham and Ackerly produced and examined in behalf of the administrators left no reasonable room for doubt as to the fact of the organization and continued existence of the Church Society. The decision and decree of the surrogate should in all things be confirmed, with costs to the petitioners.

Dykmajst and Pratt, JJ., concur.  