In the matter of the estate of Adele M. Downing, deceased. Application by John T. Pirie, a creditor, for the disposition of the real estate of deceased for the payment of her debts. From the decree directing a sale of real estate, Raphael Krasnow appeals. Reversed, and new trial granted.
[117 N.Y.S. 754] Arthur O. Wiessner, for appellant.
Charles I. Wood, for respondents.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and MILLER, JJ.
This appeal is taken from a judgment of the Surrogate's Court of Kings county, directing a sale of the real property of which Adele M. Downing died seised to pay the debts of the decedent. Exception was taken to the denial of a motion to dismiss the proceedings upon the ground that the petition did not state facts sufficient to authorize such sale, and exception was also taken to the admission of certain evidence tending to establish that John T. Pirie and Susan Wright were creditors of the decedent, and to the sufficiency of such evidence. These exceptions seem to us to be fatal. The jurisdiction of the Surrogate's Court to entertain such a proceeding is statutory, and must be exercised in the manner and according to the procedure prescribed in the statute. Duryea v. Mackey, 151 N.Y. 204, 45 N.E. 458.The existence of a debt is one of the facts essential to confer jurisdiction (Code Civ. Proc. § 2752), and to authorize a decree (Code Civ. Proc. § 2756). The facts necessary to establish the existence of a debt must be set forth in the petition. Mead v. Sherwood, 4 Redf. Sur. 352; Matter of German Bank, 39 Hun, 181.So far as the claim of the petitioner is concerned, no such facts are stated. The petition alleges that John T. Pirie is a creditor of the decedent to the amount of $325 and interest from December 17, 1896. This is a mere conclusion. It is impossible to determine from the petition how or when the alleged indebtedness arose, or whether for goods sold, upon a note, for rent, or in any other way. This would clearly be an insufficient statement of facts in a complaint under the provisions of the statute. Code Civ. Proc. § 481; Bogardus v. New York Life Ins. Co., 101 N.Y. 328, 4 N.E. 522; Miller v. White, 4 Hun, 62.We do not see why a [117 N.Y.S. 755] less specific statement of facts should be admitted in a proceeding of this kind. In answer to this objection, it is claimed that the petition at least states facts from which it may be found that Susan Wright has a valid claim against the decedent, and that this is enough to give the court jurisdiction. If the petitioner had set forth facts showing his own indebtedness, one debt might be sufficient (Matter of German Bank, supra), but the petitioner must be either the executor or administrator or a judgment creditor or any other creditor except a mortgage creditor. Code Civ. Proc. § 2750. The statute does not permit any other person to call upon the court to act. But not only was the petition insufficient; the proof also was fatally defective. If the validity or amount of a claim is disputed, the surrogate must determine this. In re Haxtun, 102 N.Y. 157, 6 N.E. 111.The petitioner's claim was through an alleged assignment from Eliza J. McCormack. Upon the hearing, a mortgage purporting to be made by Adele M. Downing to Eliza J. McCormack was offered in evidence. This mortgage was dated February 1, 1892, and contained a recital that it was given to secure two notes for $500 each, made by the mortgagor to the mortgagee-one payable six months from date, the other eighteen months from date. The mortgage covered property at Sea Cliff. It was objected to as immaterial, irrelevant, and incompetent, but the objection was overruled. This mortgage is not printed in full in the appeal book, but we may presume as it was recorded that it was properly acknowledged. It was therefore admissible in evidence. Code Civ. Proc. § 937. The petitioner then offered in evidence a paper purporting to be a note of the said Adele M. Downing to the said Eliza J. McCormack, dated February 1, 1892, payable 18 months after date, for $500. This paper was not acknowledged. If it had been, it could not have been received in evidence. Code Civ. Proc. § 937. When offered in evidence, it was objected to as immaterial, irrelevant, and incompetent, and specifically upon the ground that the making of the note was not sufficiently proved. This objection was overruled and an exception taken. The genuineness of the signature to this note was a vital fact to be proved. It is quite likely that the note is genuine. No evidence whatever was offered upon that point, although the statute provides an easy method of obtaining an admission respecting the same. Code Civ. Proc. § 735. The petitioner now claims that the fact that the mortgage contains a recital that it was given to secure a note of like date and tenor with the paper offered in evidence is proof of the execution of this paper. The recital in the mortgage might be sufficient to prove the existence of a note, but not of this note. If this had been a suit on the note, and the maker were living, and the plaintiff had called her as a witness and asked her whether on the 1st of February, 1892, she had made a note to the order of Eliza J. McCormack for $500, payable 18 months after date, and, upon receiving an affirmative answer, had allowed her to leave the stand without identifying the paper which she signed, I think that the note could not be received in evidence without further proof. Palmer v. Manning, 4 Denio, 131; Shaver v. Ehle, 16 Johns. 201; Bardin v. Stevenson, 75 N.Y. 164; [117 N.Y.S. 756]People v. Corey, 148 N.Y. 476, 486, 42 N.E. 1066.But the declaration in the mortgage certainly amounts to no more than such evidence would amount to. Non constat that the note which the mortgage was given to secure may be in the hands of another person, for there may have been more than one note given by Adele M. Downing on February 1, 1892, payable 18 months from date, or the note offered in evidence may have been one given by a person of similar name, or it may have been a forgery. If there had been evidence as to the genuineness of the signature which had been disputed, it might well be that the recital in the mortgage would be competent corroborative evidence in favor of the genuineness of the note, but of itself it was insufficient to authorize a judgment. Bardin v. Stevenson, supra; People v. Corey, supra.In the case last cited each of these cases was considered, and the doctrine of Palmer v. Manning, that such an admission was not of itself sufficient to establish liability, was affirmed. The finding of the surrogate that it was the note of Adele M. Downing, which finding was excepted to, was error, as there was no other evidence to support it. The petitioner also contends (to quote from his brief) that:
" When an instrument, to which there are no subscribing witnesses, comes from the possession of the person entitled to its custody, it may be read in evidence without proof of execution, as this will be presumed when no circumstances of suspicion are shown."
He cites in support of this St. John v. American Mutual Life Ins. Co., 2 Duer, 419, affirmed 13 N.Y. 31, 64 Am. Dec. 529.Inadvertently this citation, apparently taken from the syllabus of the case, is not correctly made. It is as follows:
" An assignment or other instrument in writing, to which there is no subscribing witness, when it comes from the possession of the person entitled to its custody, may be read in evidence, upon proof of its being genuine, without proof of its actual execution at the time of its date."
In that case there was positive proof as to the handwriting of the maker. Failure to produce and prove the note, although the mortgage which was given to secure it was produced, would justify a finding that the debt was paid. Bergen v. Urbahn, 83 N.Y. 49.
The judgment appealed from should be reversed, and a new trial granted, costs to abide the event.
JENKS and GAYNOR, JJ., concur.
MILLER, J., concurs on the first ground stated in the opinion.
WOODWARD, J., reads for ...