
    Magdalena Murzynowski, Administratrix, Pl’ff, v. The Delaware, Lackawanna & Western Railroad Company, Def't.
    
      (Superior Court of Buffalo, Trial Term,
    
    
      Filed March 10, 1891.)
    
    Evidence—Settlement op cause op action—Obdeb op subrogate—New trial.
    In an action for damages brought by an administratrix against a railroad company, the answer alleged as a defense that prior to the commencement of the action, another action had been brought by the same party, which had been settled and compromised by the plaintiff, and a release given of all liability for and on account of the matters alleged therein. After the trial defendant offered in evidence an unverified petition of plaintiff, addressed to the surrogate, asking leave to settle the former action, also the surrogate’s order granting the same, and a release, under seal, executed by plaintiff as administratrix, acknowledging satisfaction of the cause of action and payment of $250. Objection was made and the evidence excluded. Held, error; that the verdict for plaintiff would be set aside and a new trial granted.
    Motion by defendant for a new trial made on the minutes of the court, and to vacate and set aside the verdict of a jury in favor of plaintiff.
    
      John G. Milburn, for def’t; George W. Cothran, for pl’ff.
   Hatch, J.

—The answer of the defendant herein alleged as a defense that prior to the commencement of the present action another action by the same party, had been begun to recover damages for the same cause of action, which former action had. been, upon order of the surrogate of Erie county, settled, and compromised by the plaintiff, upon the payment to her of the sum of $250, and that thereupon plaintiff had executed and delivered, to defendant a release of said cause of action, and of all liability for and on account of the matters alleged therein. Upon the trial of the present action defendant offered in evidence an unverified petition of plaintiff herein addressed to the surrogate of Erie county, showing that she was appointed administratrix of the goods, chattels and credits of Paul Muzynowski, and qualified as such; that she had brought an action against the present defendant to recover for the death of said intestate; that she was offered in settlement the sum of $250; that said intestate had left herself and several children; that the chance of recovering in such action was extremely doubtful, and praying to be allowed upon the payment of said money to settle and release the cause of action. Defendant also offered in evidence an order of said surrogate based upon the petition, granting the prayer thereof; also a release, under seal, executed by plaintiff as administratrix, acknowledging satisfaction of the cause of action, and the payment of $250. Objection was made by plaintiff to the reception of these documents in evidence, the court sustained the objection and excluded each of them, to which ruling defendant took exception. The ground of objection, and the ruling of the court, rested on the claim that the petition, presented to the surrogate, was unverified, and the facts stated therein were insufficient to confer jurisdiction upon the surrogate to make the decree, and in consequence-the entire proceeding was void.

Limited letters of administratian were granted to plaintiff, as provided for in § 2667, Code. By this section it is provided that the surrogate may, in his discretion, issue such letters and accept, modified security, where a right of action is granted to an administrator by special provision of law, for the purpose of the prosecution or such action; in such case the administrator shall be restrained from compromising the action or enforcing any judgment recovered therein, “ until further order of the surrogate on additional further satisfactory security.” The letters issued in this case contained the restraining clause. The ruling of the court can only be sustained upon the ground that the decree authorizing the compromise was absolutely void, and such is plaintiff’s contention. To determine this question involves an examination of the powers and jurisdiction conferred by law upon surrogates’ courts. The Code has made them courts of record, and their jurisdiction has been the subject of examination many times.

In Bearns v. Gould, 77 N. Y., 455, action was brought to charge a surety upon a bond, given by a guardian, who had been removed by the surrogate and ordered to pay a certain sum, and, in event of default, authorizing the prosecution of the bond. The complaint alleged the order of the surrogate fixing the amount of the default, the order of removal and directing prosecution. Demurrer was interposed upon the ground that the complaint failed to state facts constituting a cause of action. The argument to sustain the demurrer claimed that it did not affirmatively appear that the court had jurisdiction to make the order, or that the proceedings taken resulting therein were in accordance with the statute.

The court held the complaint good upon the authority of Laws-1870,. chap. 359, which placed orders and decrees of the surrogate of New York on the same footing with orders issued by a court of general jurisdiction, and that they could not be questioned collaterally.

In Harrison v. Clark, 87 N. Y., 572, a similar question arose, and it was there held, upon the authority of the same statute, that where jurisdictional defects exist in the orders of the surrogate, the object of the statute is to prevent their validity being questioned for want of jurisdiction, except by appeal, or in a direct proceeding for that purpose.

The only restriction which remains, seems to be, that if there be lack of jurisdiction of the general subject matter or the person, and no right exists under any circumstances to make the order or decree, it may be attacked in any proceeding collateral or otherwise.

It is true that the cases referred to were controlled in their decision by the special statute applicable to the city of New York, but by §§ 2473 and 2474, Code, substantially such rule is now the general law governing all surrogate’s courts, the object being, with respect to surrogate’s courts, to place their orders and decrees-upon the same footing as obtains in courts of general jurisdiction. See Throop’s note to section.

The result counsel for plaintiff strenuously combats, and the claim is made that § 2473 requires in all cases an allegation of jurisdictional facts contained in a written petition or answer, duly verified, or no jurisdiction is conferred to act

This language of the section is: “ Where the jurisdiction of the surrogate’s court to make * * * a decree or other determination is drawn in question collaterally and the necessary parties were duly cited, or appeared, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established, by an allegation of the jurisdictional facts contained in a written petition or answer duly verified, used in the surrogate’s court.” It is quite evident that this section does not seek to regulate the practice which shall obtain in surrogates’ courts; if it did then it is clear that no decree could be upheld unless founded upon a written petition duly verified containing a statement of jurisdictional facts. '

That such is not the rule clearly appears from § 2533, where it is made discretionary with the surrogate to take oral proof or require a written petition, unless the act expressly provides for a written petition. By reference to § 2667, where authority is found to authorize the compromise, no such proof is required. It was so expressly held in O'Connor v. Huggins, 113 N. Y., 511; 23 N. Y. State Rep., 275, where the court says: “ The surrogate was not confined to any form of procedure, or to any mode of proof, in acting upon an application for letters * * * The plea, when urged collaterally, that the decision was erroneous, must always be unavailing * * * The surrogate had jurisdiction to grant the letters, and hence the statute makes them conclusive evidence of the authority of the persons to whom they were granted until revoked or set aside.”

Section 2473 does not say that the order or decree shall be void if there be no written verified petition, but if there be such petition, it is presumptive, and if no fraud or collusion appear, it is conclusive, so that no proof would be admissible to shake it. In the absence of proof showing the want of jurisdiction, as a fact, it is not made incumbent upon the person relying upon the order to make proof of facts showing jurisdiction, nor does it become void if no proof is made. The section is drawn to protect the order or decree, not to destroy it, and if not founded on such verified petition the attacking party is at liberty to show, as a fact, not that there never was a petition, but that the jurisdictional facts did not exist, and that in fact the surrogate never had jurisdiction of the subject matter to make the order. That allegation appearing, the petition would conclude even that proof. This construction is in harmony with the following § 2474, which provides : “ The surrogates’ courts claims jurisdiction in every case, by the existence of the jurisdictional facts prescribed by the statute * * "* An objection to a decree or other determination founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any intermediate proceeding required by law to be taken, is available only on appeal.” Mo language can make more plain this provision or the rule intended to be established by the two sections. This construction is not in conflict with Hood v. Hood, 85 N. Y., 561, or People v. Corlies, 1 Sandf., 229.

Both cases arose before the adoption of the Code. Mor do I think them applicable here in any event. In the case first cited, there had been no decree made by the surrogate which the executor had disobeyed, nor had any execution been issued against him and returned unsatisfied, nor had the surrogate assigned or ordered the prosecution of the bond, all of which the statute required. These facts appeared, and as they were essential, in order to create liability against the sureties in the bond, it was held that no action could be maintained. This presents a very different question from one where the surrogate had jurisdiction to make the order, and has made it. With respect to proof of service upon the infants therein, the Code has changed the rule. In the Corlies case a similar question was presented. These cases stand upon their own facts, and are not in conflict with the long line of decisions which have protected surrogates’ orders and decrees from collateral attacks. Jackson v. Robinson, 4 Wend., 437; Farley v. McConnell, 7 Lans., 428 ; affirmed on appeal, 52 N. Y., 630; Johnston v. Smith, 25 Hun, 171; Kelly v. West, 80 N. Y., 139 ; Roderigas v. Savings Inst., 76 id., 320, 321; 17 W. Dig., 460; Crosier v. Cornell Steamboat Co., 27 Hun, 215.

In the present case the surrogate had jurisdiction to grant the letters of administration, all the persons were before the court and all proceedings essential to that end were taken. The court also had jurisdiction to make an order authorizing a compromise of the action; it therefore had jurisdiction of the general and particular subject matter. The evidence tended to show that an action to recover damages for which this action was brought, was then pending; the plaintiff testifies she was present, in court, so that, to the extent necessary, the court had jurisdiction of the person. Having this jurisdiction the manner of its exercise was a question of practice; if there was a failure to observe the statutory requirements in this regard, it does not go to the jurisdiction but was an irregularity merely. The other particular defects pointed out consist in the claim; First, That the last clause of subd. 7, § 2472, Code, relating to the general jurisdiction of surrogates’ courts, which provides: “This jurisdiction must be exercised in the cases, and in the manner prescribed by statute,” limits the exercise of power to the specific mandates of the statute, and a failure to observe them renders the proceeding void. Such construction of this clause has been condemned in Hartnett v. Wandell, 60 N. Y., 346, where Judge Allen says: “ The last paragraph of the section, declaring that the powers conferred shall be exercised in the cases, and in the manner prescribed by the statutes of the state, does not limit or restrict the jurisdiction or qualify the general terms of the statutes conferring the jurisdiction and defining the powers of the surrogate.” And again: “ That part of the act which declares that he shall exercise the powers conferred in the manner prescribed by law is not jurisdictional, unless it is restricted in its operation to the manner of acquiring jurisdiction by citation or other process, or by proof of the facts upon which jurisdiction depends, as the case may be. As a regulation of practice, when the surrogate has jurisdiction, it is modal, and does not affect the powers of the magistrate. A substantial compliance with the statutes, would satisfy the act, and the statutes regulating the mode of procedure, like all rules of practice should be liberally construed. * * * Neither a literal or technical construction * * * should be given to the statutes, only affecting the mode of procedure in the surrogates’ courts.” Id., 353-354. Cited with approval in Martin v. Dry Dock etc., Co., 92 N. Y., 75.

. Second. It is claimed that the order is void for the reason that the surrogate did not require “ additional further satisfactory security.” Similar clauses were long ago held to be directory. Bloom v. Burdick, 1 Hill., 134; Sheldon v. Wright, 5 N. Y., 512; Farley v. McConnell, 52 id., 630.

It follows from these views that the evidence should have been received. The verdict of the jury is, therefore, set aside and a new trial ordered, costs to abide the event  