
    In the Matter of the Estate of William Radde, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed April 26, 1890.)
    
    Executors and administrators—Consent does not give city court of New York jurisdiction of action against.
    The Code having provided that the city court of New York has not jurisdiction of an action against an executor or administrator in his representative capacity, it cannot acquire jurisdiction of such an action by the appearance and answer of the executor.
    Application to strike out the name of an alleged creditor as a party to a final accounting.
    
      Herman T. KoepJce, for adm’r; Lord, Day ¿3 Lord, for Mary L. Tyler.
   Eansom, S.

During the pendency of the proceeding of the accounting of the administrator herein, in 1887, Mary L. Tyler, the respondent, was allowed to intervene and was made a party to the proceeding by an order entered February 15, 1887. Her petition, upon which the order was based, set forth, among other things, that she was a judgment creditor of decedent; that on or about May 4, 1886, she served her proof of claim upon the administrator, and thereupon received a notice disputing the same, whereupon she served upon the administrator’s attorney an offer to refer the claim, which was not accepted. In October, 1886, the administrator filed his account, and objections thereto having been made, a reference was ordered. In March, 1887, the administrator was allowed to file an amended account, to which objections were made and reference ordered. In April, 1888, the report of the referee was confirmed, except as to one item, concerning which further testimony was taken, and in July, 1888, the final report of the referee was confirmed, and in November of the same year a decree was entered which provided that the administrator should at once file a supplemental account. Such account was not filed, and on the application of Mary L. Tyler, the alleged judgment creditor, an order was entered March 24, 1889, directing the administrator to file such account on or before April 1st, instant.

Application is now made by the administrator for an order striking out the name of Mary L. Tyler as a party to the proceeding, and adjudging that she has no standing as a creditor, upon the ground that the judgment she recovered against the administrator was wholly void and without effect, and that by the lapse of six months after the rejection of her claim, without the commencement of an action to enforce its payment, it was, therefore, barred.

If this judgment is invalid, the creditor not having commenced an action within six months after the rejection of her claim, it is barred by the short statute of limitations. I am satisfied that the surrogate has power to determine the validity of this judgment, see Matter of Depuy, 29 N. Y. State Rep., 642; though if it were confessedly recovered in a court of competent jurisdiction it could not be attacked here. McNulty v. Hurd, 72 N. Y., 518; Freeman v. Nelson, 4 Redf., 374.

But that is the precise question in this case. Had the city court jurisdiction, and if not, was that defect waived by the administrator who appeared and answered in the action ? The action brought against him was for the rent of premises hired by the decedent in his lifetime, and for damages for alleged waste committed thereon. Subdivision 3 of § 316, of the Code of Civ. Pro., limiting the jurisdiction of the marine court, provides that it has not jurisdiction of an action commenced against an executor or administrator in his representative capacity.

It is also claimed that the city court, having jurisdiction of the subject matter of the action, consent gave jurisdiction over the defendant, who voluntarily submitted.

I do not agree with this proposition. In Davidsburgh v. The Knickerbocker Life Ins. Co., reported in 90 N. Y., at p. 526, an action was commenced in the city court of Brooklyn against a domestic corporation. By the Laws of 1870, jurisdiction is conferred on that court “ where any of the defendants shall reside, or are personally served with a summons within the said city.” The defendant appeared (the summons having been served upon its secretary, who resided in Brooklyn) and at the close of plaintiff’s case moved that the complaint be dismissed on the ground of want of jurisdiction. This motion was granted. The court of appeals say : “The defendant did not take the objection” (want of jurisdiction) “ by its answer, but at the end of the plaintiff's case. The point of time does not seem material. The court could not acquire jurisdiction by consent, and might, whenever its attention was called to the defect in the proceedings, refuse to exceed the powers conferred by the law of its creation.

“ There are, no doubt, many cases where the court having jurisdiction over the subject matter may proceed against a defendant who voluntarily submits to its decision, but where the statute prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such a case the particular condition or status of the defendant is made a jurisdictional fact.”

In Risley v. Phenix Bank, 83 N. Y., 337, the court say: “ Where a court has jurisdiction, it has a right to decide every question which occurs in the cause * * * and an erroneous ruling or decision, in the course of the proceedings, does not render its judgment void; but a court authorized by statute to entertain jurisdiction in a particular case only, if it undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, acquires no jurisdiction, and its judgment is a nullity, and will be so treated when it comes in question, either directly or collaterally.” See also cases cited.

In Callahan as executrix v. The Mayor, etc., of the City of New York, 66 N. Y., 656, an action was brought in the marine court to recover salary alleged to be due and unpaid plaintiff’s testator as assistant sergeant-at-arms of the board of aldermen. Defendant appeared and answered by attorney, and at the close of the evidence moved to dismiss the complaint on the ground, among others, that the marine court “ had no jurisdiction of the action or of the defendant,” which motion was denied, and judgment directed for plaintiff. The court of appeals held, that the officers in a municipal corporation cannot, by consent or omission to object, give to a court jurisdiction in an action against the corporation where the law has conferred elsewhere exclusive jurisdiction of actions against it, and that the appearance and answer by attorney of defendant was not a waiver of the question of jurisdiction, and did not confer jurisdiction.

The decisions above cited are in point with, and cover all the questions arising in the case at bar. I hold, therefore, that the judg ■ ment recovered was invalid and void, and that the claim of the creditor having been disputed and rejected, and no action commenced by her to enforce it within six months from its rejection, she is barred by the statute of limitations, and is not a party interested in the proceeding herein.

The application is granted.  