In re Plumb — 21 N.Y. St. Rep. 107

Majority

p. 107

In the Matter of Sarah L. Plumb, an Infant, James N. Plumb, General Guardian, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Practice—Surrogates—Guardian—Petition for removal—Alltv GATION OF CONCLUSIONS OF FACT NOT SUFFICIENT TO AUTHORIZE JUDICIAL ACTION.

The mere allegation of conclusions of fact in. the language of the statute, although sufficient to confer jurisdiction, should not he considered by the court as sufficient to authorize judicial action.

2. Same—Answer—Waiver of sufficiency of petition.

A party by answering a petition for removal of guardian without objection. waives his right to object to the sufficiency of the petition.

3. Same—Extent of inquiry discretionary—Code Civ. Pro., § 2833.

The extent of the inquiry the surrogate is directed to make by section 2833 of the Code is entirely discretionary with him.

p. 108

Appeal by the guardian from an order of the surrogate directing a reference as to the facts in the respondent’s petition for the removal of her father as general gurdian of her person and estate.

Henry Thompson, for opp’ It; David McGlure, for resp’t.

The mere allegation of conclusions of language of the statute, although it has been held by the court of appeals to be sufficient to confer jurisdiction, should not, however, be considered by the court as sufficient to authorize judicial action. . The facts upon which these conclusions are founded, should be set forth in order that the court may see that such conclusions are supported by the facts from which they are deduced.

Applying this rule to the case at bar, the petition would seem to be entirely insufficient, except perhaps in so far as the removal is asked for upon the ground of non-residence. In that respect the petition sets forth the facts from which the conclusion that the guardian has become a non-resident, is drawn, and is not subject to the criticism which might be passed upon the balance of the petition which simply alleges conclusions of fact without anything to support the same.

If at^the time of the return of the citation this objection had been taken, we think it would have been the duty of the surrogate to have dismissed the petition so far as these allegations were concerned, because of the infirmity referred to. But it appears that the guardian appeared and answered without objection, and now appeals from the order thereupon entered. We think that upon appeal the objection is not available, and that the right to object to the infirmities of the petition has been lost by the answer without objection.

The point that the surrogate has not proceeded according to the provisions of the law does not seem to be well taken. Reference is made to section ¿833 of the Code which provides that upon the presentation of a petition as prescribed in the last section, the surrogate must inquire into the matter, and for that purpose he may issue a subpoena to any person, requiring him to appear and testify in the premises.

If the surrogate is satisfied that there is probable cause to believe that the allegations are true, he must issue a citation to the guardian complained of, and upon the return thereof, if the material allegations of the petition are established, he must make a decree revoking the guardian’s letters accordingly. The duty of the surrogate upon the presentation of a petition of this kind is prescribed by the act, namely, he must inquire into the matter. He is given the power to issue subpoenas if he chooses so to do. If, however, he deems a case sufficiently made out by the petition presented, and is satisfied that there is

p. 109

probable cause to believe the allegations are true, then the authority to issue a citation is conferred upon him. 'What inquiry he must make and to what extent, is left entirely discretionary with him. It was for him to determine upon the papers before him whether he was satisfied that there was probable cause to believe that the allegations of the petition were true, and then he was authorized to issue the citation.

There was nothing irregular in his procedure if the papers conferred jurisdiction, and as it has been held that allegations of this kind do confer jurisdiction, there being no objection taken at the joining of issue, so far as the record shows, to the sufficiency of the petition, he had the authority to take the ordinary procedure for the purpose of ■establishing facts requisite to the decision to be made.

We think, therefore, that the objection comes too late, .and that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.