
    In the Matter of the Petition of MALINDA WHEELER for a Decree Revoking Letters of Administration Granted to JOHN GILLINGHAM on the Estate of SARAH ANN GILLINGHAM, Deceased.
    
      A surrogate’s Court has jurisdiction to determine whether a person petitioning for the removal of an administrator is a creditor.
    
    Where an application for the removal of an administrator is made by a person who alleges in the petition that he is a creditor of the decedent, and this allegation is denied by the administrator, the Surrogate’s Court has jurisdiction to try and determine the issue so raised. ■
    Appeal by the petitioner from an order of the Surrogate’s Court of Niagara county dismissing the petition.
    
      Henry M. Davis, for the petitioner, appellant.
    
      Devoid Millct/r, for the respondent.
   Bradley, J.:

The petition was dismissed upon the objections taken by the administrator, to the effect: 1. That the surrogate has no power to determine that the petitioner was a creditor.- % That it has no power to compel the administrator to embrace in the inventory property which he denies belongs to the estate of the decedent. 3. That no sufficient ground of the revocation of the letters of administration is stated in the petition.' The last two grounds seem to require no consideration further than to say that the proceeding is not taken to compel the insertion of any property in the inventory, and that the allegations are such as to permit evidence in support of them of a character to justify the relief in view. (Code Civ. Pro., § 2685, sub. 2.)

The petitioner alleges that she is a creditor of the estate of the decedent, and as such takes this proceeding. The answer of the administrator denies that the petitioner has the relation of creditor. In a proceeding which has for its purpose the direction for payment, by an executor or administrator, of a claim alleged to be due the petitioner, the denial of its validity or legality by the answer of such representative defeats the jurisdiction of the Surrogate’s Court to determine tbe issue, and tbe petition must. be dismissed. (Code Civ. Pro., §§ 2717, 2718; Hurlburt v. Durant, 88 N. Y., 121.) Tbis proceeding is not taken for nor' does it involve any sucb purpose; but although tbe right to support it rests upon tbe fact that the petitioner is a creditor, it is instituted under tbe statute which enables a creditor to move upon petition for sucb rehef (la., § 2685); and for that purpose, to render tbe provisions of that section effectual to support the proceeding, tbe Surrogate’s Court must necessarily have tbe power to determine tbe issue going to the relation of tbe petitioner, as creditor, else a creditor would be powerless to protect tbe estate against tbe improvidence or misconduct of an administrator in tbe manner provided by this statute. Tbe rule and its reason, as appbed to a proceeding bke tbis, are web stated in Susz v. Forst (4 Dem., 346). Tbe objection going to tbe jurisdiction, founded upon tbe denial of tbe validity or legality of tbe claim of an alleged creditor, is applicable only to a proceeding having within its purpose tbe determination of a disputed claim as between the creditor and tbe representative, and is not extended to other proceedings in Surrogate’s Court provided for by tbe statute. (Matter, etc., of Haxtun, 102 N. Y., 157.) There is no fair opportunity appearing to conclude that tbe petition was dismissed for want of proofs in support of tbe allegations of tbe petition. It quite clearly appears that tbe dismissal was wholly upon the objections before referred to. By the views here given there is no purpose to indicate to any extent tbe character or sufficiency of evidence required to justify or permit tbe granting of tbe prayer of tbe petition.

Tbe conclusion is that it was improperly dismissed upon tbe objections taken. Tbe order should, therefore, be reversed.

Smith, P. J., Babees and Haight, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, payable out of tbe assets in tbe bands of tbe administrator.  