174 Misc. 53 | N.Y. Sur. Ct. | 1940
Petitioner in this proceeding is an ancillary administrator of Delia Kelley. His appointment as such administrator was validated by decree of this court entered pursuant to the remittitur of the Appellate Division in this department. That court made its determination in a proceeding instituted by the public administrator of New York county to revoke ancillary letters of administration theretofore issued. (258 App. Div. 469.)
In the instant proceeding the respondent is the city of New York. It is possessed of property of Deha Kelley. In its answer to this application it puts in issue the allegations of the petition which assert the death of Deha KeUey. If in fact she be living a pay
The case, therefore, stands in the same position as if the petitioner were asserting on the pleadings a right to be paid by the city despite a denial by the city of the death of Delia Kelley. It is the settled law of this State that the letters of administration even if issued in this State would not establish prima facie that Deha Kelley is dead. (Scott v. McNeal, 154 U. S. 34; Marks v. Emigrant Industrial Savings Bank, 122 App. Div. 661; Carroll v. Carroll, 60 N. Y. 121; Matter of Killan, 172 id. 547; Williams v. Post, 158 App. Div. 818; Matter of Katz, 135 Misc. 861; Bering v. U. S. Trust Co., 201 App. Div. 35. See, also, discussion in 119 A. L. R. 594.) On the authorities cited the proceeding must be dismissed for failure of proof.
Submit, on notice, decree accordingly.
