
    In the Matter of the Distribution of Proceeds of Real Estate of Elizabeth A. Stilwell, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed October 3, 1893.)
    
    ,1. Foreclosure—Judgment.
    The validity or regularity of a provision in a judgment of foreclosure, not raised by a party to the suit by answer, appeal or motion, cannot be raised collaterally where the court rendering the judgment had general jurisdiction of the parties and the subject matter of the action.
    :2. Same—Surplus.
    A statute that provides for the deposit of surplus moneys arising from the sale of the lands of a deceased person in the surrogate's court having jurisdiction of the settlement and distribution of his estate, and providing for the proceedings in that court for its distribution among the parties entitled, subject to the appellate jurisdiction of the supreme court upon the law- and the facts, is constitutional.
    Appeal from judgment of the supreme court, general term, ■first department, affirming decree of surrogate directing distribu"tion of surplus arising from sale under foreclosure and order de* mying stay.
    
      John G. Agar, for app’lt; Payson Merrill, for resp’ts.
    
      
       Affirming 52 St. Rep., 689.
    
   O’Brien, J.

The order from which this appeal was taken made distribution of surplus mo.neys arising upon a sale of real • estate after judgment in an action to foreclose a mortgage on the ;same. Elizabeth A. Stilwell died seized of the property, subject to a mortgage, December 21, 1890, and by her will devised it to her heirs and next of kin, of whom the petitioner in this proceeding was one The mortgage was foreclosed, and judgment of foreclosure and sale was entered in the month of November, 1891. The surplus arising upon the sale was paid into the surrogate’s •court pursuant to § 2798 of the Code. The appellant, Frances Dixon, claims to be the daughter of Mrs. Stilwell; that the will was void, and that the surplus, or at least some part of it, passed to her as heir. She was a party to the action to foreclose the-mortgage, and one of the questions that arises upon the appeal is how far she is bound by the provisions of that judgment. The surrogate made distribution of the surplus among the devisees, under the will, and thus the appellant’s claim has been ignored. On the 14th of September, 1891, she brought an action of ejectment to enforce her claim, and this action being pending when the application for distribution was made to the surrogate, she-interposed it as an answer or bar to the proceeding, and the objection was disregarded, but no evidence was offered with respect to her right to share in the distribution of the fund.

The contention of the appellant is that the provisions of the Code pursuant to which the surplus was deposited in the surrogate’s court are unconstitutional, in that they deprive the supreme court of its general jurisdiction in law and equity secured to it by the state constitution. Art 6, § 6. There are, we think, two answers to this objection :

(1.) The appellant was a party to the foreclosure action in which the direction to pay the money into the surrogate’s court was made. She was entitled to be heard on this question as well as any other in the case. The fact that she omitted to answer is not material. ' The judgment binds her as to every question litigated, or which could have been litigated, as a former adjudication between the parties or their privies, and she cannot now question anything decided collaterally. It is urged that this provision in the judgment in that case was made without notice to her, and hence she never had an opportunity to be heard. If this is so,, and she was entitled to notice, her.remedy was by motion to set aside the judgment, or to correct or amend it, and upon such motion she could have appealed from any decision made. The validity or regularity of a provision in a judgment of foreclosure not raised by a party to the suit by answer, appeal or motion, cannot be raised collaterally where the court rendering the judgment had general jurisdiction of the parties and the subject-matter of the action.

(2.) The surplus moneys in question were a part of the estate-of a deceased person, and had been disposed of by will. The distribution of such estates between heirs, next of kin, legatees and devisees was always a part of the jurisdiction of the surrogate’s court recognized by the constitution. The fund may have been devoted by the will or by law to the payment of debts or legacies in the ordinary course of administration, and at some time or in some way was liable to come within the jurisdiction of the surrogate. The sections of the Code, the validity of which are questioned, §§ 2798, 2799, treat the surplus, in the cases there specified, in the same way as the proceeds of real estate sold under the order of the surrogate. They were intended to save the expense incident to the distribution of the surplus where the mortgagor is alive, and to facilitate the orderly settlement of the estates of deceased persons.

The legislature connot limit or abridge the general j urisdiction of the supreme court as conferred by the constitution. But it sseems to me that it may, without restricting its general jurisdiction, within the meaning of the constitution, designate the place where surplus moneys arising from the sale of lands in foreclosure •or partition actions, where the owner is dead, may be deposited. Before an act of the legislature can be declared void as repugnant to the constitution, the conflict must be manifest. A statute that provides for the deposit of surplus moneys arising from the sale of the lands of a deceased person in' the surrogate’s court having jurisdiction of the settlement and distribution of his estate, and providing for the proceedings in that court for its distribution among the parties entitled, subject to the appellate jurisdiction of the supreme court upon the law and the facts, does not, in my opinion, violate any provision of the constitution. The jurisdiction of the supreme court to entertain, hear and determine the action and to execute its judgment has not been touched. The Code deals only with a fund arising from the execution of the foreolosure judgment, not disposed of by the decree, and commits that fund to the custody and control of a court which, at the time the constitution was adopted, had exclusive jurisdiction over the estates of deceased persons, and this jurisdiction was recognized by that instrument in various provisions for its future organization and existence. The action of the surrogate’s court with respect to the distribution of the fund is subject to review by the supreme court on the law and the facts. The general jurisdiction conferred upon the supreme court by the constitution does not operate to prevent the legislature from giving additional jurisdiction to other tribunals, or from changing the common law, or from regulating and altering the jurisdiction and proceedings in law and equity in the same manner and to the same extent as had been exercised by it before the constitution of 1846 was adopted. People v. Green, 58N. Y., 301; Const, art. 6, § 8. These general powers are broad enough to sustain the provisions of the Code assailed upon this appeal

The order should be affirmed, with costs.

All concur.  