
    Matter of the Estate of Andrew Neidnig, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      October, 1907.)
    Depositions—Depositions on commission—When allowed—Grounds FOR ALLOWANCE OR REFUSAL.
    A commission will not be issued to take the testimony of witnesses-in Germany to impeach the correctness of the determination of a legal tribunal there by which the paternity of the petitioner was established more than twenty years ago and which resulted in the payment of a substantial sum of money by the alleged father, the proportion of which allotted to the petitioner was paid to him upon his attaining his majority.
    Motion for the issuance of a commission.
    Edmund Fletcher Driggs, for petitioner; Watson & Kristellar (Charles H. Kelby, of counsel), for respondents.
   Church, S.

The question involved in this motion for the issuance of a commission to Germany is the legitimacy of the administrator.

A legal proceeding was had in Germany, shortly after the petitioner’s birth, in which his mother averred that his father was a man other than the deceased herein; and, as a result of this proceeding, a substantial sum of money was paid by said alleged father, the proportion allotted to the petitioner being collected by him on attaining his majority.

The petitioner asks for a commission to take the testimony of the burgomaster who was at the trial and also of two persons who, it is claimed, heard the deceased acknowledge that he was the father of the petitioner.

A decree of a foreign court having jurisdiction of the cause and of the parties is entitled to full credence here. Hilton v. Guyot, 159 U. S. 112. If obtained by fraud, or without jurisdiction, there are circumstances under which it may be assailed, but that must be by the party who has suffered by the fraud; but the petitioner here is the party who has benefited by the fraud, if any, and to permit statements of the burgomaster, or any one else, as to what took place at a trial held over twenty years ago, would be improper.

Concerning the testimony of the other witnesses, as it does not appear that the same is competent, a commission should not issue to them.

Motion denied.  