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Wm. M. Hoes, etc., Resp., v. The N. Y., N. H. & H. RR. Co., Aplt.



§ 2473.

Collateral Attack Upon Letters of Administration Issued to Public
Administrator-Construction Sections 1780 and 2473,
Code of Civil Procedure.

The plaintiff, as public administrator, brought action for damages for the death of the intestate against a Connecticut corporation upon a cause of action arising in Connecticut. The decedent left no assets in the State of New York. He died a resident of Connecticut, and his next of kin were all non-residents of New York. After his death his watch and chain, valued at $25, were, upon the advice of counsel, brought within the State of New York, and, upon a petition to the Surrogate's Court, under chapter 229 of the Laws of 1898, alleging that since the death of the intestate certain of his assets had arrived within the jurisdiction and remained unadministered, letters of administration were issued to the plaintiff. It appeared that the only purpose of bringing the watch and chain into New York and issuing the letters of administration to the public administrator was to provide a resident plaintiff who might bring this action against a foreign corporation upon a cause of action arising outside the State as permitted by section 1780 of the Code of Civil Procedure.

Held, that the device so employed for the purpose of conferring upon the Supreme Court jurisdiction to try a cause of action having its origin in the State of Connecticut where the real controversy was between a corporation and residents of that State involved legal fraud and collusion, and that under section 2473 of the

Wm. M. Hoes, etc., Resp., v. The N. Y., N. H. & H. RR. Co., Aplt.

Code of Civil Procedure it was open to the defendant to attack collaterally the decree of the Surrogate adjudging that the letters of administration issue.

Assets of a decedent brought into this State in the manner and for the purpose above described do not, as a matter of law, constitute assets which "shall arrive within the County of New York after his death" within the meaning of chapter 229 of the Laws of 1898, relating to the office of public administrator, nor do they constitute property "which has since his death come into the State and remains unadministered" within the meaning of section 2476 of the Code of Civil Procedure, defining the jurisdiction of the Surrogates' Courts. These provisions must be construed as meaning that the assets must "arrive" or "come into" the State in good faith, in due course of business, and not for such a purpose as appeared in this case.

Whether the Public Administrator of New York County by virtue

of his office or by virtue of letters of administration has, in any case, power to bring an action of this character, QUAERE. (Decided February, 1903.)

Appeal from a judgment of the Appellate Division, First Department, affirming with a divided court a judgment entered upon a verdict of a jury in favor of the plaintiff; also affirming an order denying defendant's motion to set aside the verdict and for a new trial.

Henry W. Taft, for appellant.
Thomas P. Wickes, for respondent.

BARTLETT, J.-The Public Administrator of the County of New York brings this action against the defendant. The New York, New Haven & Hartford Railroad Company, a Connecticut corporation, to recover damages for its alleged negligence in causing the death of one George Dean, who was killed in a head-on collision while acting as an engine driver on one of the trains.

The jury rendered a verdict in favor of the plaintiff for $5,000, and the Appellate Division has affirmed the judgment entered thereon with a divided court.

Wm. M. Hoes, etc., Resp., v. The N. Y., N. H. & H. RR. Co., Aplt.

At the close of the plaintiff's case a motion was made to dismiss the complaint on this ground, among others: "That the public administrator has not the power to commence an action of this kind in this State."

At the close of all the evidence this motion was renewed on the previous and additional grounds: "(6) That the public administrator has no power to bring such a suit as this under the circumstances; (7) that his appointment as administrator with the other persons existing, who were competent to be appointed in that capacity, was null and void; (8) that the letters were null and void because the surrogate was without any jurisdiction upon the undisputed facts; (9) that no written notice was given, such as is required under the Connecticut statutes."

Section 1780 of the Code of Civil Procedure provides when a foreign corporation may be sued. It reads: "An action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident in one of the following cases only: 1. Where the action is brought to recover damages for the breach of a contract, made within the State, or relating to the property situated in the State, at the time of the making thereof. 2. Where it is brought to recover real property situated within the State, or a chattel, which is replevined within the State. 3. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated within the State."

As the defendant is a foreign corporation, the parties all residents of, and the accident occurred in, the State of Connecticut, there was no jurisdiction in the Surrogate's Court of New York to issue letters of administration on the estate of the intestate, unless he died leaving assets in this State or that should come into it after his death.

The appellant insists that the plaintiff has no standing

Wm. M. Hoes, etc., Resp., v. The N. Y., N. H. & H. RR. Co., Aplt.

in the Supreme Court, because collusion or legal fraud was practised in the Surrogate's Court in obtaining letters of administration, and thus inducing that court to take jurisdiction of the estate of the decedent.

The point is also taken that the public administrator, as such, is without power to maintain this action, and that his authority in the premises is in no way enlarged merely because letters of administration were issued to him.

The counsel for the plaintiff insists that the defendant cannot attack collaterally the decree of the surrogate adjudging that letters of administration issue.

Section 2473 of the Code of Civil Procedure, contained in chap. 18 on Surrogates' Courts and proceedings therein, provides, as to assumption of jurisdiction, as follows: "Where the jurisdiction of a Surrogate's Court to make, in a case specified in the last section, 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 in the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate's Court. The fact that the parties were duly cited is presumptively proved by a recital to that effect in the decree."

It is quite obvious that the only attack the defendant could make upon the surrogate's decree is a collateral one, based on the allegation of fraud or collusion, as it was not a party to the proceeding in the Surrogate's Court, and has no standing therein to make a direct attack.

In the case of Ferguson v. Crawford (70 N. Y. 253) the question as to when a judgment may be attacked was thoroughly examined by this court, and the authorities reviewed; it was held that, under the system of practice established by the laws of this State, the want of jurisdiction may always be set up against a judgment when sought to be enforced, or when any benefit is claimed under it, and the bare

Wm. M. Hoes, etc., Resp., v. The N. Y., N. H. & H. RR. Co., Aplt.

recital of jurisdictional facts in the record of the judgment by any court is not conclusive, but only prima facie evidence, and may be disproved by extrinsic evidence (Hood v. Hood, 85 N. Y. 561, 578; Freeman on Judgments, 4th ed., vol 1, sec. 117.)

In O'Connor v. Huggins (113 N. Y. 511) the question was discussed as to the binding nature of a surrogate's decree upon the parties of the proceeding. This court said (p. 516): "His adjudication, in the exercise of his general and exclusive jurisdiction, where jurisdictional facts, necessary to the possession of that jurisdiction, appear to have been alleged, and when the necessary parties have been duly cited to appear before him, is not thereafter open to collateral attack. Power to affect the adjudication resides in the court which made it, and in the court to which it may be appealed; but otherwise it is not open to question. This principle, of course, in its application to other parties affected, implies the absence of fraud or collusion."

Throughout the proceedings the defendant has persistently insisted that there was, on the undisputed evidence, collusion and legal fraud in procuring the surrogate's decree of the County of New York, which resulted in the issuing of letters of administration on the estate of the intestate to the public administrator.

Anna Dean, widow of the intestate, was sworn for the defendant and testified as follows: "My husband left property within this State, in New York State. It was a watch and chain. I cannot say how it happened to come here. I do not know who brought it here. I believe he had it on his person at the time he was killed. He did not leave it in this State, I think. I cannot say for sure how it got here. My brother might have got it here or had it sent here. That is the only property that he had in this State."

James F. Noonan testified on behalf of the defendant as follows: "I did bring property of Mr. Dean into this State after he had died. A watch and chain. I brought them

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