
    Julia P. Ashley et al., Administrators, etc., Resp’ts, v. George W. Lamb, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    f. Surrogates—Jurisdiction.
    Where in a proceeding for the judicial settlement of the account of an administrator nothing appears of record showing that a claim was, in any manner, disputed, or that the surrogate’s court was advised in the proceeding that it had been rejected, Held, that the surrogate’s court had jurisdiction to make a decree for the payment of the claim. The jurisdiction of the surrogate to make a decree is dependent upon what appeared before him and his court in the x>roceeding in which it is entered.
    
      2. Same—Answer not available—Code Civ. Pro., § 2717.
    An answer filed by an administrator to a petition of a creditor in a proceeding brought pursuant to section 2717 for the payment of a claim, is not available in a proceeding for a judicial settlement of the account of an administrator.
    3. Same—Ho jurisdiction to pass upon disputed claim in a proceeding BROUGHT PURSUANT TO CODE ClV. PRO., § 2743.
    The surrogate and his court have no jurisdiction other than such as is given by statute, and under the statute that court has no jurisdiction in a proceeding brought for the judicial settlement of the account of an administrator to determine the rights of parties in respect to a claim which is disputed.
    Appeal from order of Monroe special term denying defendant’s motion to dissolve injunction.
    The action was brought to restrain the collection, and to cancel and cause the discharge of record of a judgment recovered against the plaintiff’s intestate. The judgment was recovered by Charles 0. Ashley, June 19, 1872, for $587.43, assigned by him to Portus M. Hinman, and by the latter to the defendant. Upon the petition of the defendant for that purpose, a citation was issued by the surrogate of Monroe county and served upon the plaintiffs, requiring them to show cause why a decree should not be made directing the payment of the judgment. On the return day of the citation, and upon the plaintiff’s petition with a view to a judicial settlement of their accounts, a citation was issued to the heirs next of kin and creditors (other than the defendant) of the estate of the decedent. The proceeding instituted by the defendant was adjourned, and carried along with that for final accounting, and one of the plaintiffs answered his petition denying that the judgment was unpaid, and alleging that it had been paid, and denying the validity of the claim founded upon it.
    A supplemental citation was issued in the proceeding for the accounting, to the return day of which both proceedings were adjourned." And then, upon the petition of the defendant with the prayer that he be made a party and that the payment of his claim be directed, he was made a party to the latter proceeding.
    And by decree made, a final accounting was adjudged and the plaintiffs were directed to pay to the defendant the amount of his claim represented by such judgment against the decedent. And afterwards proceedings were taken by the defendant to punish the plaintiffs for contempt for their refusal to pay such claim. The injunction in question was granted to restrain further proceedings founded upon such decree of the surrogate during the pendency of this action.
    
      Thomas Baines, for app’lt; H. TP. Bemington, forresp’ts.
   Bradley, J.

The decree of the surrogate directing payment of the defendant’s claim remains as effectual as when entered. No appeal has been taken from it. It is.not alleged that the decree was obtained by fraud. It would, therefore, seem that at the threshold the enquiry arises whether or not the decree had the support of the jurisdiction of the surrogate to make it. The decree appears to have been entered in the proceeding for the judicial accounting of the plaintiffs, instituted upon their petition, pursuant to the statute, and in such case “where the validity of a debt, claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same.

With respect to the matters enumerated in this section the decree is conclusive upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title from such a party.” Code Civ. Pro., § 2743. _

_ In this respect the former statute was suostantially the same. 2 R. S., 95, § 71.

And if this decree was within tne jurisdiction of the surrogate, it was, while it remained, an effectual determina- ‘ tian of the rights of the parties within its purview and conclusive upon them.

The surrogate and his court nave no jurisdiction other than such as is given by the statute. Riggs v. Cragg, 89 N. Y., 479.

And, under the section referred to of the statute, there is. no jurisdiction in that court to determine the rights of the parties in respect to a claim which is disputed. And within such provision are only embraced claims, the validity of which is not questioned. Tucker v. Tucker, 4 Keyes, 136; S. C., 4 Abb. Ct. App. Dec., 428; Greene v. Day, 1 Dem., 45, and cases there cited; S. C., 11 Abb. N. C., 50.

In a proceeding under that section no formal method of disputing a claim presented is prescribed or required. ■ And the fact that its validity is disputed is not in the way of the person making the claim being or becoming a party to the proceeding for the purpose of. the accounting by the representatives of a decedent. Code, § 2731.

Although it appears that this claim of the defendant had been presented to the plaintiffs and rejected by them, nothing appears in the record of this proceeding for judicial accounting treating it as distinct from another, which will hereafter be mentioned, that the claim was then or had been disputed by the plaintiff, nor is it alleged that the claim was disputed in such proceeding or that it therein appeared, that it had been rejected by the plaintiffs. That proceeding considered separately from any other, appears to have been such as to support the jurisdiction of the surrogate’s court to make the decree in question. But prior to the petition of the administrators for the judicial settlement of their accounts, the defendant, as creditor, had instituted a proceeding before the surrogate, by his petition praying for a decree directing them to pay his claim, and a citation was issued pursuant to the statute. Id., § 2717.

In this proceeding one of the administrators filed a written answer, duly verified, denying that the defendant’s judgment remained unpaid and unsatisfied, and alleging that it had.been fully paid, and that the administrator, upon information and belief, denied the validity of the claim. It is contended by the plaintiff’s counsel that both proceedings must be treated as one, and therefore that such answer was applicable to the proceedings for the accounting instituted by the administrators. The statute provides that upon the presentation of a petition by a creditor praying for a decree directing payment of his claim, the petition must be dismissed where the administrator files a written answer duly verified, setting forth facts which show that it is doubtful whether the petitioners’ claim is valid and legal, and denying its validity or legality absolutely or upon information and belief. Id., § 2718. _ '

_ ' It follows that if this answer came within the require-merit of the statute for that purpose, the only decree that could be entered in that proceeding was one dismissing the .petition, which it was the duty of the surrogate to enter. And if it did not require such a decree, the surrogate might if he chose, make an order requiring the administrators to render an intermediate account. Id., § 2723.

It does not appear that any decree was made dismissing the petition, nor did the surrogate on his own motion require such intermediate accounting, but the proceeding for a judicial settlement of their accounts was instituted upon the petition of the administrators pusuant to section 2729. The question therefore seems to arise, first, whether the objection taken by the answer to the petition of the defendant as creditor, was available in the proceeding for judicial settlement of the accounts, and if so, second, whether by such answer the claim was disputed and had not, within the meaning of' the statute, been established. § 2743.

These two proceedings seem to have been carried along together. But our attention is called to no statute having the effect to consolidate them.

The proceeding instituted by the defendant as creditor, for a decree directing the payment of his claim, did not come within the provision of section 2728 of the Code, providing for the consolidation of proceedings instituted under the prior sections of article 2, with one for judicial settlement instituted by the petition of an administrator, as the issuing of the citation in the defendant’s proceeding was not prescribed in that article, but it was issued pursuant to a provision of article 1. And so far as appears here they were treated as separate and independent proceedings. The one in which the decree was entered was complete in itself, and in it no reference is made to the other, and nothing in, or not in the record of it appears to have taken place in such proceeding to deny to the surrogate or his court jurisdiction to give to it the result represented by the decree. And by reference to the complaint in this action it may be observed that while it is there alleged that the answer before mentioned was filed to the defendant’s petition, there is no allegation that in the proceeding for the judicial settlement the claim was in any manner disputed or that the surrogate’s court was advised that it had been rejected by the administrators. The answer in the one proceeding would seem to have had no relation to the other. And the jurisdiction of the surrogate to make the decree was dependent upon what appeared before him and his court in the proceeding in which it was entered. It cannot be collaterally attacked by the use of existing facts which were in no manner sought to be made available .in such proceeding. And within the jurisdiction conferred by statute the adjudication of the surrogate’s court is as effectual and conclusive upon the parties as that of any other tribunal acting within its powers, and must be treated in like manner. The decree seems to have the support of the jurisdiction of that court to make it. In view of the limitation upon the power of courts of equity to - interfere with judgments rendered by courts of competent jurisdiction, there seems to appear in the appeal book no ground for the relief demanded by the complaint as against the decree of the surrogate’s court. Stillwell v. Carpenter, 59 N. Y., 423. And unless something further than is there represented is made to appear, the plaintiffs’ remedy is in a direct proceeding to open the decree with a view to relief from its effect, and to then contest so far as may be admissible the claim, or to so dispute it or its validity as to oust that court of jurisdiction in the matter. Code, § 2481; In re Hawley, 100 N. Y., 206.

These views render it unnecessary to consider the second proposition before stated. We therefore express no opinion upon the sufficiency of the objection taken by the answer to the defendant’s petition as an effectual dispute of his claim, or whether or not such claim for the purpose of the pi’oceeding in question would prima facie be deemed established by the judgment which represented it._

The order should be reversed and the motion to dissolve the injunction granted, with ten dollars costs and disbursements of this appeal to the defendant, to abide the event of the action.

Barker, P. J., Haight and Dwight, JJ., concur.  