Christy v. Libby

By the Court.—Daly, F. J. —The complaint avers the day of the death of the intestate, the granting of letters of administration upon his estate to the plaintiff, the day when they were granted, that they were granted by the surrogate of the city and county of New York and that the plaintiff qualified and entered upon her duties, as administratrix, which is all and even more«than was necessary (Ring v. Roxberough, 2 Tyr., 468 ; 2 Will, on Ex., 1595, and note 1, 4th Am. Ed. ; 1 Chitty on Pl., 315; 2 Id., 109,110; Ch. Am. Ed.; Ketchum v. Ketchum, 4 Cow., [200] 87; Goldthwayte v. Petrie, 5 T. R., 234). The granting of letters by the surrogate to the plaintiff is prima facie evidence of her due appointment, and that he had the requisite evidence before him to authorize his action (Sibley v. Waffle, 16 N. Y, 180, and in the cases before cited.) It was not necessary to aver an accounting before the surrogate. The provisions of the revised statutes conferring the jurisdiction upon surrogates was to provide an inexpensive and summary mode for bringing executors, &c., to account, but did not take away the power theretofore exercised by courts of equity to afford this species of relief. It still exercises a concurrent, and in some cases, an exclusive jurisdiction (Rogers v. King, 1 Paige, 210 ; Will. on Eq. Jur., 560). This court has the same power exercised by the court of chancery, and by the supreme court in all actions where the defendant resides or is personally served with process in this city (Bowen v. Irish Presbyterian Congregation, 6 Bosw., 246). If the defendant had been cited to account before the surrogate, and an account was pending before him at the commencement of this suit it should be set up by way of answer; for the defendant cannot be required to account before two tribunals at the same time (Percival v. Hickey, 18 Johns. 257 ; Gr. Pr., 228, and cases there cited), where another action or proceeding for. the same cause is pending. The decision of the court below that the plaintiff was entitled to judgment upon the demurrer was therefore right, and the order appealed from should be affirmed. Order affirmed.