Opinion
January, 1905.
G.K. Daley, for the appellant.
A.B. Gardenier, for the respondent.
This action is brought to recover damages for causing the death of the plaintiff's intestate. Upon the trial the plaintiff's letters of administration were introduced in evidence and thereafter upon motion stricken out. The complaint has apparently been dismissed for the reason that the plaintiff has not shown himself entitled to bring the action.
After the introduction by plaintiff of his letters of administration, the defendant introduced the petition upon which those letters were granted. That petition purported to have been verified before a notary public in the county of New York, while the venue of the affidavit of verification was stated as "State of New York, County of Columbia." The venue of the affidavit is prima facie the place where it is taken. ( Babcock v. Kuntzsch, 85 Hun, 33.) By section 2591 of the Code of Civil Procedure it is provided that letters of administration granted by a court "having jurisdiction to grant them as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed upon appeal, or the letters are revoked."
It probably must be held then that the petition stands upon the record as an unverified petition. In Redfield's Surrogates' Practice (6th ed. § 366) it is said: "The statute does not require the facts conferring jurisdiction to be proved in any particular way nor the proofs to be filed or reduced to writing and therefore a failure to find such proofs on file in the Surrogate's office is not evidence that no such proofs were adduced before him; the presumption is that they were. The production of the letters or the record or the exemplification of the record thereof establishes prima facie the representative character of an administrator in an action brought by him." That the letters are sufficient in the absence of proof of want of jurisdiction is held in Belden v. Meeker (2 Lans. 473; S.C., 47 N.Y. 307); Farley v. McConnell (52 id. 630); Welch v. N.Y.C.R.R. Co. (53 id. 610). (See Throop's note to Code Civ. Proc. [1880 ed.] § 2473.) In this case there was no proof of want of jurisdiction. The only proof was to the effect that the petition for such letters should be given the effect of an unverified petition. Under the authorities cited, it would seem to be held that to discredit the letters the defendant was bound to prove more, to wit, to prove affirmatively that jurisdiction did not exist. Nor can the ruling of the trial justice striking out the letters be sustained on the ground that parties with prior right to letters were not cited. It seems that this complaint only lies with those having such prior right. ( Kelly v. West, 80 N.Y. 140; Power v. Speckman, 126 id. 357.)
Defendant now seeks to sustain this judgment by insisting that upon the proofs the plaintiff's intestate is shown to have been guilty of contributory negligence. She was riding in a carriage as the guest of Davidson, who was driving the horse. We havallowed a judgment to stand recovered against the defendant by the representatives of Davidson. A fortiori should it be held to be for the jury to decide whether plaintiff's intestate was guilty of contributory negligence. Without discussing the facts in detail, it is sufficient to say that we are of opinion that the judgment dismissing the complaint cannot be sustained on the ground that upon the evidence as matter of law it should be held that plaintiff's intestate was guilty of contributory negligence. Holding then that the letters of administration were improperly stricken from the record and that the judgment dismissing the complaint cannot be upheld upon any other ground urged upon us, it follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.