
    In the Matter of the Application of John T. Pirie, as Creditor of the Estate of Adele M. Downing, Deceased, Respondent, for the Disposition of the Real Estate of Said Deceased for the Payment of Her Debts. Raphael Krasnow, Appellant; Elizabeth A. Downing and Others, Respondents.
    Second Department,
    June 22, 1909.
    Executors and administrators — sale of lands to pay debts—jurisdiction —pleading—when petition insufficient — evidence — note secured by mortgage. /
    The jurisdiction of the Surrogate’s Court to entertain a proceeding for the sale of real property to pay the debts of a decedent is statutory, and must be exercised in the manner and according to the procedure prescribed.
    The existence of a debt' is a fact essential to jurisdiction; and the facts necessary to establish such debt must appear in the petition.
    An allegation that the petitioner is a creditor of the decedent to a certain amount with interest is a mere conclusion insufficient to warrant a decree.
    As one petitioning for such sale must be either an executor or administrator, or a judgment creditor, or any other creditor except a mortgage creditor, allegations showing that a third person has a valid claim against the decedent are insufficient to give the court jurisdiction.
    In such proceeding the surrogate must determine the validity, or amount of a claim, if put in issue.
    Although a mortgage, which has been acknowledged and recorded, is admissible in evidence, a note secured by, such mortgage is not admissible without proof of the signature.
    Such note is not made admissible by the mere fact that a mortgage already in evidence contains a recital showing that it was given to secure a note of like date and tenor.
    
      It seems, that if there has been evidence of the genuineness of the signature of a note which was disputed, a mortgage purporting to- be given to secure a note of like date and tenor is competent corroborative evidence.
    Woodward, J., dissented, with opinion.
    Appeal by Raphael Krasnow from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7th day of April, 1908.
    
      Arthwr O. Wiessner [Charles C. Sufren with him on the brief], for the appellant.
    
      Charles I. Wood, for the respondents.
   Burr, J.:

This appeal is taken from a judgment of the Surrogate’s Court of Kings county directing a sale of the real property of which Adele M. Downing died seized to pay the debts of the decedent. Exception was taken to the denial of a motion to dismiss the proceedings upon the ground that the petition did not state facts sufficient to authorize such sale, and exception was also taken to the admission of certain evidence tending to establish that John T. Pirie and Susan Wright were creditors of the decedent, and to the sufficiency of such evidence. These exceptions seem to us to be fatal. The jurisdiction of the Surrogate’s Court to entertain such a proceeding is statutory, and must be exercised in the manner and according to the procedure prescribed in the statute. (Duryea v. Mackey, 151 N. Y. 204.) The existencó of a debt is one of the facts essential to confer jurisdiction (Code Civ. Proc. § 2752) and to authorize a decree. (Id. § 2756.) The facts necessary to establish the existence of a debt must be set forth in the petition. (Mead v. Sherwood, 4 Redf. 352; Matter of German Bank, 39 Hun, 181.) So far as the claim of the petitioner is concerned, • no such facts are stated. The petition alleges that John T. Pirie is a creditor of the decedent to the amount of $325 and interest from December ;17, 1896. This is a mere conclusion. It is impossible to determine from the: petition how or when the alleged indebtedness arose, or whether- for goods sold upon a note, for rent, or in any other way. This would clearly be an insufficient statement of facts in a complaint under the provisions of the statute. (Code Civ. Proc. § 481; Bogardus v. New York Life Ins. Co., 101 N. Y. 328; Miller v. White, 4 Hun, 62.) We do not see why a less -specific statement of facts should be admitted in a proceeding of this kind. In answer to this objection it is claimed that the petition at least states facts from which it may be found that Susan Wright has a valid claim against the decedent, and that this is enough to give the court jurisdiction. If the petitioner had set forth facts showing his own indebtedness, one debt might be sufficient (Matter of German Bank, supra), but the petitioner must be either the executor or administrator or a judgment .creditor or any other creditor except a mortgage creditor. (Code Civ. Proc. § 2750.) The statute does not permit any other person to call upon the court to act. But not only was the petition insufficient, the proof also was fatally defective. If the validity or amount of a claim is disputed the surrogate must determine this. (Matter of Haxtun, 102 N. Y. 157.) The petitioner’s claim was through an alleged assignment from Eliza J. McCormack. Upon the hearing a mortgage purporting to be made by Adele M. Downing to Eliza J. McCormack was offered in evidence. This mortgage was dated February 1,1892, and contained a recital that it was given to secure two notes for $500 each, made by the mortgagor to the mortgagee, one payable six mouths from date, the other eighteen months from date. The mortgage covered property at Sea Cliff. It was objected to as immaterial, irrelevant and incompetent, but the objection was overruled. This mortgage is not printed in full in the appeal boob, but we may presume as it was recorded that it was properly acknowledged. It was, therefore, admissible in evidence. (Code Civ. Proc. § 937.) The petitioner then offered in evidence a paper purporting to be a note of the said Adele M. Downing to the said Eliza J. McCormack, dated February 1, 1892, payable eighteen months after date, for $500. This paper was not acknowledged. If it had been it could not have been received in evidence. (Code Civ. Proc. § 937.) When offered in evidence it was objected to as immaterial, irrelevant and incompetent, and specifically upon the ground that the making of the note was not sufficiently proved. ' This objection was overruled and an exception taken. The genuineness of the signature to this note was a vital fact to be proved: It is quite likely that the note is genuine. Mo evidence whatever was' offered upon that point, although the statute provides an easy method of obtaining an admission respecting the same. (Code Civ. Proc. § 735.) The petitioner now claims that the fact that the mortgage contains a recital that it .was given to secure a note of like date and tenor with the paper offered in evidence is proof of the execution, of this paper. The recital in the mortgage might be sufficient to prove the existence of a note, but not of this note. If this had been a suit on the note and the maker were living and the plaintiff had called her as a witness and asked her whether on the 1st of February, 1892, she had made a note to the order of Eliza J. McCormack for-$500, payable eighteen months after daté, and, upon receiving an. affirmative answer, had allowed her to leave the stand without identifying the paper which she signed, I think that the note could not be received in evidence without further proof. ' (Palmer v. Manning; 4 Den. 131; Shaver v. Ehle, 16 Johns. 201; Bardin v. Stevenson, 75 N. Y. 164; People v. Corey, 148 id. 476, 486.) But the declaration in the mortgage certainly amounts to no more than such evidence would amount to. Non constat -that the note which the mortgage was given to secure may be in the'hands of another person, for there-may have been more than one note given- by Adele M. Downing on February 1, 1892,'payable eighteen months from date., or the. note offered in. evidence may have been one given by a person of similar name, or it may have been a forgery. If there, had been evidence as to the genuineness of the signature which had'been disputed, it. might we.ll be that the recital in the mortgage would be competent corroborative evidence in favor of- the genuineness of the noté, but of itself it was insufficient to authorize a. judgment. (Bardin v. Stevenson, supra; People v. Corey, supra.) In the case last cited each of these cases was considered, and the doctrine of Palmer y¡ Mo/nning, that such- an admission was not of itself sufficient to establish liability,, was affirmed. The finding of the surrogaté that it was the note of Ad ele M. Downing, which finding was excepted to, was error, as there was no other evidence to support it. Thé petitioner also contends (to quote from his brief) that “ When an instrument, to which there are no subscribing witnesses, comes from the possession of the person entitled-to- its custody, it may be read in evidence without proof of execution, as this will be presumed when no circumstances, of suspicion are shown.” He cites in support of this St. John v. American Mutual Life Ins. Co. (2 Duer, 419; affd. 13 N. Y. 31). Inadvertently this citation, apparently- taken from the. syllabus of the case, is not correctly, made. It is as follows: “An- assignment, or other instrument in writing, to which there is no subscribing witness, when it comes-from the possession of the person entitled to its custody, may be read in evidence, .upon proof of its being genuine; without proof of its actual execution at; the time óf its date.” - In that case there was-positive proof as to the handwriting of the maker. Failure to produce and prove the note,' although the mortgage which was given to secure it was produced, would justify a finding that the debt was paid. (Bergen v. Urbahn, 83 N. Y. 49.

The decree of the Surrogate’s Court should be reversed with costs.

Jenks. and Gaynor, JJ., concurred; Miller, J., concurred on the first ground stated in the opinion; Woodward, J., read for affirmance.

Woodward, J.

(dissenting) :

I am unable to concur in the opinion of Mr. Justice Burr. The suggestion that the allegation of the petition that John T. Pirie is a creditor of the decedent to the amount of $325 and interest from December 17, 1896, is a mere conclusion, does not strike me as having force. It is clearly a statement of a fact. He says the decedent owes him the sum of $325 and interest from a certain date. What more can he do ? He is not obliged to plead his evidence, to say that he owes him $325 on a promissory note, and to set out the note; he complies with the requirement of section 481 of the Code of Civil Procedure, that he shall make a “ plain and concise statement of the facts constituting each cause of action without unnecessary repetition,” when he says that the decedent owes him $325, and if this statement is challenged, then he is to produce the evidence of the debt. The court acquires jurisdiction under the provisions of sections 2472 and 2749 of the Code of Civil Procedure if the petition sets forth any item of indebtedness due from the decedent, stating the amount and to whom the same is owing (Matter of German Bank, 39 Hun, 181, 185), and clearly this allegation of the petition is sufficient for this purpose. But it is urged that the proof is fatally defective ; that if the validity or amount of a claim is disputed the surrogate must determine this (Matter of Haxtun, 102 N. Y. 157), and that the evidence in support of the claim does not meet the requirements.

It seems" important to an intelligent discussion of the question that we get the true situation of the parties and see what questions are open to consideration here. Questions of importance, under some considerations, become purely academic under other circumstances. Adele M. Downing died in September, 1905, leaving a last will and testament. She was at the time of her death seized In fee of the real property described in the petition, .which petition was made under the provisions of title 5 of chapter 18 of the Code of Civil Procedure, and is a special proceeding for the purpose'óf selling real estate to pay debts. This real estate was subject to a mortgage made by decedent in 1892, which mortgage is now held by Meyer Jacobs. Under decedent’s will this real' estate was devised to her daughter-in-law, Elizabeth A. Downing, who was ■ made sole executrix of the will. ... She did not advertise for claims against the estate, and in July, 1907, filed' an account showing that ' decedent’s personal estate^ was insufficient to pay either her debts or her funeral expenses. On the 16th day of December, 1905, Elizabeth A. Downing, as sole devisee under the will, sold and conveyed the premises in question, subject to. the mortgage now held' by Meyer Jacobs, to the appellant, Raphael Krasnow. In this transaction Elizabeth A. Downing took back á purchase-money mortgage, which she subsequently assigned to the respondent,- Moses L. Parshelsky. . .

The petitioner, as I have already suggested, instituted this special proceeding for the purpose of procuring the sale of the real estate described in liis- petition, and I think it is clear that he stated all of- • the facts' required by the statute to give jurisdiction to the surrogate. This- special proceeding was instituted within .three years from the time that letters, were issued to Elizabeth A. Downing ás sole executrix under the will, and the law is well established that during a period of three years the creditors of -a decedent have a kind of statutory lien 'upon the real- estate left by him, and' that such real estate cannot be so aliened by liis heirs or devisees during that time as to defeat the claims of creditors thereon (Platt v. Platt, 105 N. Y. 188, 197), and that an intending purchaser of real estate is bound to know that the real estate is subject to the payment of a decedent’s. debts within three years from the probate of the will. (Olyphant v. Phyfe, 18 App. Div. 1; affd. on opinion below, 166 N. Y. 630, 631.); It is apparent, then, that the appellant, Krasnow, and the respondent, Parshelsky, having acquired their rights under the period that the real estate was subject to this lien, took subject to this lien, and they, are in no better position and have no greater rights than belong to Elizabeth A. Downing, as sole devisee under the will.

Both Elizabeth A. Downing and Krasnow answered the petition, making a general denial of the material facts and setting up the Statute of Limitations, and upon the trial the petitioner offered in evidence a mortgage made by the decedent, Adele M. Downing, to Eliza J. McCormack, under an assignment of which he claimed. Mr. Wiessner, appearing for Krasnow, objected to this as immaterial, irrelevant and incompetent, and as not binding upon the respondent Krasnow. The objection was overruled and an exception taken, but it is now conceded that this mortgage, being recorded, must be presumed to have been properly acknowledged, and, therefore, competent evidence of any. fact which it tended to prove. Then counsel for petitioner offered “ Also the second of the two notes mentioned in the mortgage just offered in evidence.” ■ Mr. Wiessner objected to this as “immaterial, irrelevant and incompetent, as not binding on these respondents, and as. incompetent under section 829 of the Code,” and moved “ to strike out the characterization as the second ■ note referred to in the mortgage.” The objections were overruled and the motion denied, exceptions being noted. This was the only objection raised in behalf of Krasnow, but Mr. Reiter, appearing for Elizabeth A. Downing, also objected, “ as incompetent and immaterial, the making of the note not being sufficiently proved.” This was overruled, with an exception noted. Mr. Wiessner and Mr. Reiter were making separate objections and taking exceptions, in one case it being stated in the minutes that the same objection was taken by both counsel for respondents, and it may be fairly questioned whether a separate objection and exception taken in behalf of Elizabeth A. Downing, who does not appeal, is available for Mr. Krasnow. When his counsel stated his objections to the admission of the note as immaterial, irrelevant and incompetent, as not binding on these respondents, and as incompetent under section 829 of the Code, he must be deemed to have stated all the objections which he desired to urge, and, as none of these i's available here, it is difficult to understand what grounds he has for urging objections which he did not raise. It might be, under an understanding appearing in the record, that-objections stated by one party would be sufficient to raise the question for all whose interests were the same, but nothing of the kind appears in the record. On the contrary, the attitude of counsel appeared to be to look after the special interests of their own clients, and Mr. Wiessner made no remark to indicate that he desired to raise the same question for his client, and.having specifically pointed-out the grounds of objection which he desired to make, he must be deemed to have waived all other objections. (Tooley v. Bacon, 70 N. Y. 34, 37; Friedman v. Breslin, 51 App. Div. 268, 270, 271.) Under somewhat similar circumstances, the court in Varnum v. Hart (6 N. Y. Supp. 346, 353, Barker, P. J., writing for a unanimous court) says : “The defendant Hart- had ample.opportunity to renew an objection in his own behalf, before the witness gave the objectionable evidence, and, as he. failed to do so, or to-move to strike'out the evidence after it had been received, it is to be presumed that by his silence he was willing that it. should remain in the record.” Clearly, where parties appear by sepiarate counsel, after answez-ing separately, and the' record shows no understanding that objections taken on behalf of one party are to be considered in the case for the benefit .of another, and where it appears that both counsel are on guard, and make their own objections, why should a party appealing be given the benefit of an- objection taken in behalf of a party who does not appeal ? - .

Concede that this is a technical point. So, likewise,, is the- objection attempted to be znade use - of to defeat what is, in all probability, a meritorious claim. Wigznore on Evidence (§ 2596) says: “ In probably most instances where a document is material- under the pleadings, or is evidentially used, its genuineness is not doubtful. Yet the proof of that genuineness may be onerous and expensive. * *' * It would, therefore, be the part of common sense to recognize the needs of the situation by some expedient for facilitating the proof. The appropriate remedy seems- naturally to lie in securing some sort of judicial admission, by rule of pleading or otherwise, where the circumstances justify it.” . He then points out ' an early English rule,, with various statutory provisions designed for meeting just such a situation as was here presented to overcome the rule, that writings do not prove theznselves. The English rule- cited required the adverse party to concede the genuineness of the writing, or to take the risk of paying the expense of proving the samé if the evidence justified a finding that it was. genuine, a rule that might well be adopted in the practical administration-of the-law, giving the adverse party, of course, an opportunity to examine the paper a reasonable length of time before it was offered. As a bad answer is good' against a bad complaint, so a technical rule is good as against a technical objection.

Assuming, however, that the exception taken by Elizabeth A. Downing is available to the appellant, I am persuaded that upon the merits reversible error is not presented. The mortgage was concededly proper and competent evidence; no one is questioning this here. This mortgage was but a part of a single transaction. The remainder of the transaction was evidenced by two promissory notes, one of them for $500, being payable in six months, and the other for a like amount, being payable in eighteen months from the date of the mortgage and of the note, these facts being recited in the mortgage. As a mortgage is but an incident to the debt which it is intended to secure, the logical conclusion is that a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. The security cannot be separated from the debt and exist independently of it. (Merritt v. Bartholick, 36 N. Y. 44, 45, and authorities there cited; Bloomingdale v. Bowman, 21 N. Y. St. Repr. 247; Manne v. Carlson, 49 App. Div. 276, 278; Smith v. Thompson, 118 id. 6, 7.) The mortgage and the note being in contemplation of law inseparable, it was iricumbent upon the petitioner, the allegation of indebtedness being denied, to show-an assignment both of the mortgage and of the note which it was given to secure, and a part of his case depended upon his possession, of right to possession, of the evidence of debt, and this was preliminary to the offering in evidence of the “ assignment of mortgage and note which have been offered in evidence, made by Eliza J. McCormack to John T. Pirie.” It will be remembered that this mortgage was made and delivered by A dele M. Downing to Eliza J. McCormack, and was given to secure two notes of $500 each made by the party of the first part to the party of the second part, one payable in six months from date and the other payable in eighteen months from date, with interest on each, and that the assignment of the mortgage and note was made by Eliza J. McCormack, the mortgagee, to John T. Pirie, the petitioner, so that the physical possession of the mortgage, duly acknowledged, reciting the making and delivery of the notes, together with the possession of one of these notes, accompanied by the assignment of Eliza J. McCormack, was the fulfillment of the law. The note in question came by assignment and delivery from the hands of Eliza J. McCormack, who was, by the recitals of the mortgage, entitled to the ownership and possession of the note and the mortgage ; the two papers were a part of a single transaction, the collateral obligation referring specifically to' the primary obligation, and the two never having parted company in fact, as they could not in law, where is the defect in proof; where is the error of which any one can complain ? The suggestion that the note which the mortgage was given to secure may be in the hands of another person, for there may have been more than one note given by Adele M. Downing on February 1, 1892, payable eighteen months from date, or the note offered in evidence may have, been one given by a person of similar name, or it may have been a forgery,” seems to me wholly without force under the circumstances herb presented. Concededly Eliza J. McCormack was the owner of the mortgage, and that ownership was a mere nullity, except in connection with the ownership of the note. Indeed, the mortgage recites that she was entitled.to the note. She was, then, the owner, and holder of this note for value,, and in connection therewith she owned the mortgage. Being 'the owner and holder of the debt, with the collateral, she concededly parted with the ownership of both in the assignment to the petitioner, and to raise any question about the genuineness of this note we must presume that Eliza J. McCormack, owning and holding this note, deliberately perpetrated a fraud upon the petitioner by delivering to’him a spurioiis note in connection with a valid mortgage, or that the petitioner, being the owner of the mortgage and the note under a valid assignment from Eliza J. McCormack, has undertaken to substitute a forged note for the genuine one which he owned, and every presumption of law is against any . such conclusion. Gessante rationeiegis cessat ipsa lex. (Broom Leg_ Max. [4th Am. ed.] 133.) It is one thing to say that a writing does not prove itself, and quite another to say that a paper which represents a part of a single transaction, and which is a necessary part of the evidence of that-transaction, which is fully described in a writing constituting the contract under which the first paper was made and delivered, and which is found in the same possession, under a valid assignment, is not proved because no one has testified to the signature on such paper. The rule is laid down by Wigmore (§ 2132) that when the. execution of a document is not in issue, but only the contents or the fact of the existence of a document of such tenor, no authentication is necessary, and this rule would seem to cover the present case. The mortgage recites the existence of a certain note, describing it. The petitioner presents the mortgage ■ and the note corresponding with the description, shows an assignment of these two writings, .joined in law, and yet we are asked to hold that this note was not sufficiently proved; that it was error to admit it as showing a debt due to the petitioner. The executrix under the will of Adele M. Downing is not here complaining that the debt is not properly proved against the estate, and I do not think it is the law of this State that the evidence in this case is incompetent or immaterial, or that it is necessary to have direct testimony" to the genuineness of a promissory note produced under such circumstances. It seems to me like a mere quibble, raised by one who has no standing to raise it, because he did not raise the question in the court below.

I think the decree of the Surrogate’s Court should be affirmed.

Decree of the Surrogate’s Court of Kings county reversed, with costs.  