
    MARY CLUFF, Respondent v. HENRY S. DAY, et al., Appellants.
    
      Action on oficial bond—TF7ien complaint defective in failing to allege jurisdictional facts and proceedings in surrogate’s court.
    
    In an action brought under section 2609 of the Code of Civil Procedure against the sureties upon a bond to secure the faithful performance of his duties given by an executor and filed in the office of the surrogate of New York county, the complaint alleged the interest of the plaintiff, the probate of testator’s will, the issue of letters testamentary to the executor, a non-resident of the state, and the bond previously given thereon, proceedings in the nature of an accounting in the surrogate’s court in the year 1873 wherein by decree said executor was directed to retain and invest pursuant to the provisions of the will the sum of $12,222.98 (subsequently reduced by amendments to the decree to $10,937.98), proceedings in the surrogate’s court in the year 1886 wherein plaintiff and her children and said executor were parties, and wherein a decree was entered on September 30,1886 “ as amended nunc pro tunc by order October IS, 1886,” adjudging said executor as chargeable with $10,037.98, directing him to deposit said sum and the further sum of $868.04 with the chamberlain of the city of New York, and revoking the letter testamentary granted him. The complaint further set forth the facts as found by the referee in the proceedings to remove said executor, showing failure on his part faithfully to execute the trust reposed in him as such executor and to obey the orders of the surrogate touching the administration of the fund committed to him, and consequent injury to the estate of the testator to the extent of $10,906.02 with interest from September 30, 1886. Due demand of said executor and of the defendants was alleged of said amount, also that no successor to said executor had been appointed, and that leave to maintain the action had been obtained by order of said surrogate’s court pursuant to section 2609 of the Code of Civil Procedure.
    Upon the trial the objection was taken that the complaint failed to allege that the surrogate had jurisdiction to entertain the proceedings instituted in 1886 to remove the executor, or that the orders mentioned in the complaint were duly made, and further that there was a failure both to allege and to prove that the surrogate had jurisdiction to make the order of October 18, 1886, amending nunc pro tunc the order of September 30, 1886. The trial judge received in evidence the record of the proceedings in the surrogate’s court overruling defendants’ objections, and directed a verdict for the plaintiffs, defendants’ exceptions to be heard in the first instance at the general term. Held, that the complaint was defective in failing to allege in terms that the surrogate’s court had jurisdiction, and that the decrees in the removal proceedings were duly made.
    Before Dugro and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    A verdict for plaintiff was directed at the trial term5 and the exceptions were ordered to be heard in the first instance at the general term. The character of the action is set forth in the head note.
    
      
      Charles E. Wilson, attorney for appellant Day, and Isaac’ Fromme, attorney for appellant Thompson, argued:—
    I. The objections were sufficiently raised upon the trial. The objection is stated in the language permitted, by the Code of Civil Procedure for the statement of a demurrer and it is distinctly stated that plaintiff had failed to allege the jurisdiction of the surrogate’s court. The position taken by defendants and argued extensively at the trial on both motions to dismiss was that the plaintiff had failed to allege the jurisdiction of the surrogate’s court. Defendants contended that the surrogate’s court, being a court of limited jurisdiction, it was necessary that plaintiff should either allege in her complaint the fact which gave the court jurisdiction or allege that the decrees or determinations of the court were duly made (Code Civ. Pro., § 532). It is very evident that plaintiff’s counsel understood this objection, for in his brief used on the argument, he says : “It was not necessary for plaintiff to state that the decree was duly made in the language of § 532 of the Code, as she took the other alternative and alleged the facts conferring jurisdiction.” Defendants contended that plaintiff had not followed either of these methods. It is also evident that the court at trial term understood the objection, for in answer to plaintiff’s motion the court says : “ Jurisdiction sufficiently appears from the proceedings that have been put in evidence.” The cases cited by plaintiff on this point do not apply. In each of them the objection was so general that its meaning was ambiguous and none of them had reference to the dismissal of a complaint for insufficiency. The Code (§ 499) sets forth two classes of objections to a complaint which may be raised on a trial and refers to another section on demurrer (§ 490) where they are specified, and that section provides that the objection must be distinctly stated, but that they may be stated in the language of the statute. The cases under the old code deciding how a demurrer should he stated are more nearly in point (Haire v. Baker, 1 Seld., 357; Getty v. H. R. R. B. Co., 8 How., 177; Hoagland v. Hudson, Ib., 343; Hulbert v. Young, 13 Ib., 413) as the provision in the Code of Civil Procedure as to how a demurrer should be stated was not in the former code.
    II. It was not obligatory upon defendants to point out this specific objection. In the event that this court at general term should hold that the jurisdiction of the surrogate to make the original decree of 1886 was proved on the trial, though not alleged (defendants contending that it was neither alleged nor proved) it was argued that there was at least no proof of the jurisdiction of that court to make the order of amendment. This objection was raised on the argument at general term only by way of anticipation. Defendants presumed that plaintiff would endeavor to show that even though his complaint was insufficient, this defect was cured by the evidence before the court, following Lounsbury y. Purdy, 18 N. Y., 515, which held that where the complaint omits facts essential to a cause of action, but which might be supplied by amendment before or after judgment, and these facts are proved at the trial after the judge has refused to dismiss the complaint, the defect of statement is no ground for appeal. It was with this principle of practice in view defendants contended at general term that plaintiff had neither alleged jurisdiction nor proved jurisdiction. Plaintiff annexes to his complaint a decree of the surrogate’s court amended nunc pro tunc as a part thereof, and depends upon the recitals therein contained for his allegations of jurisdictional facts. But recitals in a judgment or decree of a court of limited jurisdiction are simply prima facie evidence of jurisdiction, Wright v. Nostrand, 94 N. Y., 31; Agricultural Ins. Co. v. Bernard, 96 Ib., 526. They are only evidence, not allegations of the facts themselves. It is necessary that plaintiff should allege facts and not merely the evidence of facts. Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 328; Russell v. Clapp, 7 Barb., 482; Mann v. Morehead, 5 Sandf., 557; Miliken v. Cary, 5 Hun, 272. The criterion in every such case is whether the allegations in question can be made the subject of a material issue. Williams v. Hayes, 5 Barb., 470. Even though the recitals in the decree of 1886 might be sufficient to establish the jurisdiction of the surrogate’s court they do not of themselves put in issue this jurisdiction, but they only tend to prove it when put in issue by proper allegations. In the recent case of Rio Grande W. R. R. Co. v. Rothschild, 20 Civ. Pro., 197, the general term of the Supreme Court held that “ the law of a foreign statute is a fact to be alleged. It is not necessary to plead the evidence of the fact whether such evidence be embodied in the statutes of the foreign state or in the decisions of the courts. But the fact that a given proposition is the law must be stated if such fact be essential to a recovery.” Plaintiff should have amended his complaint, but this he declined to do, and his only remedy left was to bring such evidence before the court at the trial as would warrant the court at general term in overlooking the defects in the pleading. Lounsbury v. Purdy, supra. But there is no such evidence properly in the case. The admissions in the answer of defendant Day are admissions only of the facts pleaded and not of mere controvertible evidence of facts which may happen to be referred to in the complaint, and as plaintiff did not allege in any manner the jurisdiction of the surrogate’s court there is no evidence of such' facts as to defendant Day before the court. Plaintiff expressly states that the decree of 1886 which contains the recitals is not put in evidence as against defendant Day. Defendant Day admits certain allegations contained in the complaint, but this cannot be construed as an admission of that which is not alleged, N. C. Bank v. Wescott, 118 N. Y., 468. The decree was offered in evidence as against defendant Thompson, and objected to by him on the ground that the surrogate had not jurisdiction to make it and exception taken, so that as against defendant Day there is no evidence whatever in the case of the jurisdiction of the surrogate’s court to make either the original decree or the amendment nunc pro tunc, and the defendant Thompson has protected himself against the evidence by a valid exception. Defendants moved to dismiss on the ground of the insufficiency of the complaint and on the ground that the evidence did not show the jurisdiction of the court. The defendants are not liable on a decree of the surrogate’s court unless the surrogate had jurisdiction to make it, and as has already been shown this jurisdiction must be pleaded by plaintiff, and if controverted must be proved, neither of which was done in this case. The burden of proving the jurisdiction of the surrogate was on the plaintiff. Roderigus v. E. R. S. Bank, 43 Supr., 217, affirmed, 76 N. Y., 363; Westervelt v. Westervelt, 46 Supr., 303; Re Hawley, 104 N. Y., 262; Cornell v. Barnes, 7 Hill, 35; Turner v. Roby, 3 Com., 193. The principles set forth in Lounsbury v. Purdy (supra) do not apply to this case for defendant moved to dismiss at the opening of the trial, and did not waive it upon the trial, for no evidence was offered on this point against defendant Day, and to what was offered against defendant Thompson exception was duly taken and the motion to dismiss was renewed at the close of the trial. In such a case it is the legal right of defendant to have the complaint dismissed. Tooker v. Arnoux, 76 N. Y., 397.
    III. Plaintiff has no right in this case to introduce the records of the surrogate’s court first at general term in order to prove that the surrogate had jurisdiction to make the order of amendment. If plaintiff had sought to introduce the evidence of jurisdiction on the trial, it would have been objected to on the ground that it was not pleaded, and if then admitted defendants would have had an exception, but if admitted first at general term, defendants can neither object nor except. The recitals in a decree or order are only prima facie evidence, {supra) the proof of the sufficiency of a citation, of notice and of the petition and jurisdiction of the person and subject matter are all controvertible. It is all evidence that must be weighed by the court, and upon its admission it must be decided whether its sufficiency establishes jurisdiction. If this record evidence should be received the defects in the pleading and proof would not be removed.
    
      Robert Owen, attorney, and Edward B. Whitney of counsel, for respondent, argued :—
    I. Defendants on the argument of the appeal raised a point which was not raised at the trial: namely, that plaintiff should have shown affirmatively that the surrogate had the right to amend the decree of 1886 nunc pro tunc. We understand them to raise this point under their general motion to dismiss the complaint for lack of proof. This, like defendants’ other points, raises a mere question of irregularity or error, which cannot be collaterally considered in this court.
    II. Such a point cannot be raised for the first time on appeal. If the absence of a necessary document from plaintiff’s proof is relied upon by defendants under a general motion to dismiss, they must show affirmatively that the defect could not have been obviated if specified at the time of the motion. Binsse v. Wood, 37 N. Y., 526; Isham v. Davidson, 52 Ib., 237; Thayer v. Marsh, 75 Ib., 340; Sloman v. Great Western Ry. Co., 67 Ib., 208; Althouse v. Wells, 40 Hun, 336.
    III. The original papers now produced show the amendment to have been a mere resettlement, changing a matter of detail for the benefit of defendants’ principal, and entirely within the power of the surrogate under Code Civ. Pro., § 2481, subd. 6. These papers may properly be considered by the general term.. The rule allowing the introduction of evidence upon appeal in support of the verdict below applies to all matters of record or other documentary evidence of an indisputable character. Dunham v. Townshend, 118 N. Y., 281, and cases cited; Burnham v. Brennan, 42 Super., 49.
   Per Curiam.

Defendants’ exceptions were ordered to be heard in the first instance at general term.

The complaint neither states the facts conferring jurisdiction upon the surrogate nor alleges that the decree and amending order referred to in the complaint were duly made, and in this is bad, § 532 Code Civil Procedure.

While as to defendant Thompson it might not be improper to amend the pleading so as to conform to the proof, as the decree was not put in evidence against Day, it is best that the exceptions should be sustained and that there should be a new trial—costs to abide the event. Ordered accordingly.  