In re the Estate of Depuy — 29 N.Y. St. Rep. 642

Majority

p. 642

In the Matter of the Estate of Lewis Depuy, deceased.

(Supreme Court, General Term, Third Department,

Filed February 24, 1890.)

Headnote

Executors and administrators—Proceedings eor payment—Void judgment.

In an application to a surrogate "for payment of a claim against the estate of a deceased person under a judgment against deceased and wife, recovered in 1877, the answer of the, administratrix, under § 3718, Code Civ. Pro., showed that the justice of the supreme court who rendered the judgment was related to the deceased in the sixth degree. Hdd, that the surrogate properly dismissed the proceeding, since the judgment was void.

Appeal from order of surrogate dismissing the petition of Stephen Burkhalter for an accounting and payment of his claim, and denying the prayer of said petition.

John D. Eckert, for app’lt; F. L. Westbrook, for resp’t.

The petitioner applied to the surrogate for payment of a claim against the estate of the deceased. He showed the recovery of a judgment in October, 1877, against the deceased and Sabina E. Depuy. The answer of the administratrix, under § 2718, set forth facts showing that the claim was doubtful, and the surrogate dismissed the petition. The petitioner appeals. The facts shown were that the justice of the supreme court who rendered the judgment’against the defendants was related within the ninth degree to the defendant, Lewis Depuy. The judgment was recovered before the statute of 1883. But the relation was in fact within the sixth degree.

The judgment was, therefore, void, even though it had not been set aside. This relationship being shown and not denied, the surrogate could not consider the judgment binding on him or on. the parties. He, therefore, properly dismissed the petition, leaving the claimant to seek his remedy by action on the original liability if he should be so advised.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.