Van Valkenburg v. Lasher , 60 N.Y. Sup. Ct. 594 ( 1889 )

Martin, J.

The only question which we deem it necessary to examine in this case is whether the decree of the surrogate of Delaware county, entered in the matter of the accounting by the plaintiffs with the estate of Frederick Lasher, deceased, was sufficient evidence of the defendant's liability to the plaintiffs to justify a recovery in this action. Ho proof of any claim, or indebtedness against the defendant was given, unless the decree of the surrogate was evidence thereof.

The question involved in the proceeding before the surrogate was whether the plaintiffs’ intestate had been guilty of negligence, or an omission of her duty as administratrix of her husband’s estate, in not enforcing certain alleged liabilities of the defendant to such estate. The defendant was a party to that proceeding as next of kin, but was not made a party as a debtor to the estate, nor sought to be charged as such. There was no issue between the plaintiffs and defendant on that proceeding. The issue was between the plaintiffs and the contestant of their account. If the plaintiffs’ claim that the surrogate had jurisdiction of the person of the defendant and of the subject-matter of the controversy in that proceeding be admitted, still, as the controversy there related solely to the question of the negligence of their intestate, the decree of the surrogate was not evidence of the defendant’s liability in this action. The Code of Civil Procedure declares of what facts a surrogate’s decree shall be evidence, (section 2742,)¹ which does not include the facts necessary to sustain this action. Moreover, we do not think the surrogate would have had jurisdiction to try that question. Ho authorities have been cited, and wre have found none, statutory or other, which would j ustify us in holding that a surrogate is invested with authority on a final settlement to try the validity of a disputed claim made by the estate against a debtor, although the debtor is one of the next of kin, and appears as such. On the contrary it has been held that the surrogate has no power to determine the validity of a claim of an estate against another, even when he is a legatee and the executor seeks to have such debt adjudged as a partial satisfaction of such legacy. In re Colwell, 15 N. Y. St. Rep. 742; Greene v. Day, 1 Dem. Sur. 45. See, also, Kintz v. Friday, 4 Dem. Sur. 541; In re Kellogg, 39 Hun, 275; In re Keef, 43 Hun, 98. Hence we are of the opinion that the learned trial judge was right in holding that the decree of the surrogate was not conclusive or binding upon the defendant; that the surrogate had no jurisdiction to determine the claim between the estate and the defendant; and that he properly granted the defendant’s motion for a nonsuit. Judgment affirmed, with costs. All concur.

1 Code Civil Proc. N. Y. § 3743: “A judicial settlement of the account of an executor or administrator, either by the decree of the surrogate’s court or upon an appeal therefrom, is conclusive evidence against all parties who were duly cited or appeared, and all persons deriving title from any of them, at any time, of the following facts, and no others: (1) That the items allowed to the accounting party, for money paid to creditors, legatees, and next of kin, for necessary expenses and for his services, are correct; (3) that the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he was legally accountable; (8) that the money charged to the accounting party, as, collected, is all that was collectible at the time of the settlement on the debts stated in the account; (4) that the allowances made to the accounting party for the decrease, and the charges against him for the increase, in the value of property were correctly made. ”