
    John A. Smith and Others, Appellants, v. Elmer A. Holden and Clinton B. Smith, Respondents.
    Second Department,
    January 25, 1907.
    Will — action to determine validity of probate — failure of surrogate to transmit record — nonsuit not proper.
    A plaintiff who has complied with the provisions of § 2653a of the Code of Civil Procedure by filing the summons cannot be nonsuited in an action to determine the validity of a probate of a will brought'under said section on the ground that the surrogate has failed to transmit the record to the Supreme Court as required by statute.
    When the pleadings of both parties allege the admission of the will to probate, and the decree entered thereon, the trial court lias' jurisdiction, and it devolves upon the defendant to “ offer the will in probate” and rest and the plaintiff shall then offer his evidence.
    In any event, when no evidence has been offered showing the merits, the complaint cannot be dismissed upon the merits.
    Appeal by the plaintiffs, John A. Smith and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on" the-27th day of April, 1906, dismissing the complaint upon the merits.
    
      James H. Hickey [Henry W. Bridges and Edwin B. Woods with him on the brief], for the appellants.
    
      Harrison S. Moore, for the respondents.
   Rich, J.:

This action was brought under the provisions of section 2653a of .the Code of Civil Procedure, to determine the validity of the probate of the last will and testament of one Phebe Ann Berrian. The plaintiffs are her heirs at law and next of kin, and the defendants are her legatees, devisees and executors. Her will was admitted to probate on June 27, 1905, by the surrogate of Queens county. The plaintiffs filed their summons and complaint, with proof of service thereof, in the office of the clerk of the county of Queens on October 18, 1905, and said clerk, on January 15, 1906, caused his certificate that an action had been commenced to determine the validity of the probate of said will to he served on the clerk of the Surrogate’s Court, as required by the section under Which the action is brought. The surrogate did not transmit a certified copy of his record to the Supreme Court as the section of the Code, 2653a, requires. ' The action was upon the calendar.of the April, 1906, Queens 'County Trial Term,, and when reached .in its regular order was1, moved by the plaintiffs and a jury impaneled, immediately following which comise! for defendants moved to dismiss the complaint upon the ground., that the record in the Surrogate’s Court had not been transmitted to the court, and that without its presence the' trial could not proceed. ' The plaintiffs’ counsel thereupon filed two certificates of the, clerk of the court, showing the filing of the summons and complaint in his office, his certificate of the procedure and pendency of the action to the surrogate and the omission pf the latter to transmit the record. The learned trial justice, granted the defendants’ motion and judgment' was accordingly entered dismissing the complaint upon the merits, from which judgment this' appeal is taken.

The only question presented by the record for our consideration is whether the omission .of the surrogate' to perform the duty devolved upon him by'section 2653a of -the Code furnished a legal ground for the dismissal of the complaint, and this question must be answered in the negative. ' Eo absolute duty rested -upon the plaintiffs to have the record in.coürtj the omission of which justified so severe a punishment as the'dismissal of .their complaint upon, the merits.. The pleadings of both parties allege the admission to probate of the will and the decree entered thereon,, which is sufficient to "give jurisdiction to the trial court. The section provides that the party'sustaining the will .shall, be entitled to open and close- the evidence and argument; he shall offer the will in probate and rest. The other party shall then offer his . evidence.” Until the defendants, had complied with the Code requirements, the case was with them, and a motion to dismiss- could not be entertained., Were it conceded, as contended by the respondents,‘that, the power to dis"iniss was v-ested in-the trial court at that stage of the case, the judgment wo.uldp nevertheless, have to be-reversed, for it dismisses the poinplaint-omthp merits. Eo evidence had -been offered establish". ing the merits, and the court was without power to divest the plaintiffs of their - ¡right to a new action by basing its adjudication on the merits.

The judgment must be reversed. .

Hirschberg,. P. J., Woodward, Jerks and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  