People ex rel. Oakley v. Petty ( 1884 )

■ BarNArd, P. J.:

A writ of prohibition is only proper when an inferior court has no jurisdiction either of the subject-matter, or having that, when the court exceeds its jurisdiction in respect thereto. The relators are' executors of the estate of Solomon Oakley, deceased. James LI. Tuthill, as receiver, has a judgment against them as such executors.- James H. Tuthill is surrogate of Suffolk county; Thomas Young is county judge and be is a defendant in the action in which the judgment was recovered against the relators. Each of these officers certify to their disability, and the district attorney acted upon the petition of' James H. Tuthill, receiver, as creditor of relators as executors, and. issued a citation to them to account. They disobeyed the citatipn, and the district attorney, acting as surrogate, issued an attachment against them. There is really but one question presented, and that is the question of the jurisdiction of the officers, for if it was a properly constituted court, the court had jurisdiction of the subject-matter, and whether the receiver was a creditor within the meaning of the statute (Code, § 2726), would fall among questions to be determined by appeal and not by the writ of prohibition. So, likewise* the sufficiency of the service of the papers would not be the subject of review by this writ. Was there sufficient proof of authority for the district attorney to act, and was it within the power of the legislature to provide that a district attorney could, in any case, act as surrogate, are therefore the questions to be considered. It is provided by section 2487 of the Code of Civil Procedure, that when a surrogate is “ precluded from acting in a particular matter,” that fact may be proved by the surrogate’s certificate thereof. The proof of authority, from the General Term, of the defendant, required under section 2484, is only needed when the office of surrogate is vacant or the surrogate is disabled by reason of “ sickness, absence or lunacy.” The certificate of the surrogate, who was the petitioner, is proof of disability. By section 2484 the officers are designated, in order of priority, who shall discharge the duties of the office until the vacancy is filled or the disability ceases. By section 2485 the same officers are designated to “'exercise his jurisdiction and power with respect to that matter,” when a surrogate is disqualified from acting with respect to any particular matter. These proceedings being in Suffolk county there are only three persons capable of acting. The surrogate was interested; the county judge was by force of chapter 151, Laws of 1879, and section 2485 of the Code, acting surrogate. The. surrogate could not certify except for himself. The acting surrogate was vested with the power in the particular matter. His certificate of disqualification was likewise proof of disability. He was a defendant in the judgment which the surrogate was "attempting to collect. In the absence of .other proof he could not be a juror with an interest as co-defendant with one of the parties. It is of no importance whether the certificate disclosed a good reason for disqualification. The creditor was not bound to make an issue with the surrogate or the county judge. The legislature had power to make the district attorney in special cases acting surrogate. The clause providing for a special surrogate does not prohibit the appointment of a court or persons who shall in specified cases of disability perform the duty of the surrogate. It is a matter of necessity. A surrogate and special surrogate may both be related or interested in a particular matter. A designation of the district attorney as a person to perform the duty in the particular case is not prohibited either by the present or by any former constitution. He has stood upon the statute book of the State as an alternate surrogate for over fifty years (chap. 320, Laws of 1830, § 21), and has constantly acted whenever the exigency happened which rendered it necessary. The order refusing writ of prohibition should be affirmed, with fifty dollars costs.

Dyxman, J., concurred; Peatt, J\, not sitting.

Order refusing writ of prohibition affirmed, with fifty dollars costs.