Ashley v. Lamb

The decree of the surrogate directing payment of the defendant’s claim remains as effectual as when entered. Ho appeal lias been taken from it. It is not alleged that the decree was obtained by fraud. It would therefore seem that at the threshold the inquiry ■arises whether or not the decree had the support of the jurisdiction of the surrogate to make it. The decree appears to have been entered in the proceeding for the judicial accounting of the plaintiffs, instituted upon their petition pursuant to the statute, and in such case, “ where the validity of a debt, claim, ■or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all ■other questions concerning the same. With respect to the matters enumerated in this section, the decree is conclusive upon each party to the special ^proceeding who was duly cited or appeared, and upon every person deriving title from such a party.” Code Civil Proc. § 2743: In this respect the former-statute was substantially the same. 2 Bev. St. p. 95, § 71. And, if this decree was within the jurisdiction of the surrogate, it was while it remained an ■effectual determination of the rights of the parties within its purview, and ■conclusive upon them. The surrogate and his court have no jurisdiction ■other than such as is given by the statute, (Riggs v. Cragg, 89 N. Y. 479 ;) and, under the section referred to of the statute, there is no jurisdiction in ■that court to determine the rights of the parties in respect to a claim which is disputed; and within such provision are only embraced claims, the validity of which is not questioned, (Tucker v. Tucker, * 43 N. Y. 136 , 4 Abb. Dec. 428;

Although it appears that this claim of the defendant had been presented to the plaintiffs, and rejected by them, nothing appears in the record of this proceeding for judicial accounting, treating it as distinct from another, which will hereafter be mentioned, that the claim was then or had been disputed by the plaintiff, nor is it alleged that the claim was disputed in such proceeding, or that it therein appeared that it had been rejected by the plaintiffs. That proceeding, considered separately from any other, appears to have been such as to support the jurisdiction of the surrogate’s court to-make the decree in question. But, prior to the petition of the administrators for the judicial settlement of their accounts, the defendant, as creditor, had instituted a proceeding before the surrogate by his petition, praying for a decree directing them to pay his claim, and a citation was issued pursuant to the statute. Id. § 2717. In this proceeding one of the administrators filed a written answer, duly verified, denying that the defendant’s judgment remained unpaid and unsatisfied, and alleging that it had been fully paid, and that the administrator, upon information and belief, denied the validity of the claim. It is contended by the plaintiffs’ counsel that both proceedings-must be treated as one, and therefore that such answer was applicable to the proceeding for the accounting instituted by the administrators. The statute provides that, upon the presentation of a petition by a creditor praying for a decree directing payment of his claim, the petition must be dismissed when the administrator files a written answer, duly verified, setting forth facts-which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely or upon information and belief. Id. § 2718. It follows that, if this answer came within the requirement of the statute for that purpose, the only decree that could be entered in that proceeding was one dismissing the petition, which it was the duty of the surrogate to enter; and, if it did not require such a decree, the surrogate might, if he chose, make an order requiring the administrators to render an intermediate account. Id. § 2723. It does not appear that any decree was made- dismissing the petition, nor did the surrogate, on his own motion, require such intermediate accounting, but the proceeding for a judicial settlement of their accounts was instituted upon the petition of the administrators pursuant to section 2729. The question, therefore, seems to arise (1) whether the objection taken by the answer to the petition of the defendant, as creditor, was available in the proceeding for judicial settlement of the accounts; and, if so, whether by such answer the claim was disputed, and had not, within the meaning of the statute, been established. Section 2743. These two proceedings seem to have been carried along together. But our attention is called to no statute having the effect to consolidate them. The proceeding instituted by the defendant, as creditor, for a decree directing the payment of his claim, did not come within the provision of section 2728 of the Code, providing for the consolidation of proceedings instituted under the prior sections of article 2 with one for judicial settlement instituted by the petition of an administrator, as the issuing of the citation in the defendant’s proceeding was not prescribed in that article, but it was issued pursuant to a provision of article 1, and, so far as appears here, they were treated as separate and independent proceedings. The one in which the decree was entered was complete in itself, and in it no reference is made to the other, and nothing in or notin the record of it appears to have taken place in such proceeding to deny to the surrogate or his court jurisdiction to give to it the result represented by the