70 N.Y.S. 597 | N.Y. App. Div. | 1901
This is an appeal from a judgment dismissing the complaint at the trial of an acti@n to recover a deposit paid upon a contract for the sale of lands and the expenses of examination of title. The plaintiff rejected the title on June 13, 1898, upon the ground that, though it was derived through the will of Gould, admitted to probate by the surrogate on January 31, 1898, there was no proof of •service of citation upon Homer and Culmenique, next of kin and .heirs at law, nor appearance by them. It appears that an order was made by the surrogate on December 8, 1897, directing service of :said citation upon Homer and Culmenique by publication or personally without the State, and that proofs of service by publication were in existence on June 13, 1898, duly executed and ready for filing, and that said proofs were filed in the office of the surrogate on June 16, 1898, together with an order of the surrogate that they •be filed nunc pro tune as of January 31, 1898.
I am of opinion that Mr. Justice Marean was right and that the 'judgment should be affirmed. In Kelly v. West (80 N. Y. 139) the objection that the letters of administration were void because they were issued without citing the widow and without her renunciation was overruled for the reason that the surrogate had jurisdiction, and hence the statute made the letters of administration conclusive evidence of the authority of the persons to whom they were granted .until revoked or set aside. This authority was cited and approved in O'Connor v. Huggins (113 N. Y. 511, 517). In Wetmore v. Parker (52 N. Y. 450) there was objection that the surrogate had no jurisdiction to admit the will to probate because the service of the citation and proof thereof was made by one of the executors, but the court held that the probate could not be attacked collaterally for such an irregularity. It is conceded that service had been duly directed by publication or by personal service outside of the State, that the persons in question had been served and that the proof ■thereof was in existence on June 13, 1898, duly executed and ready for filing. In O'Connor v. Huggins (supra) it is held that the surrogate was “ not confined to any form of procedure or to any mode
It will be presumed upon collateral attack that the court acted correctly and with due authority and that its judgment is “ as valid as though every fact necessary to jurisdiction affirmatively appeared.”' (Gridley v. College of St. Francis Xavier, 137 N. Y. 327, 331.) It is neither alleged nor proved at the trial that the decree did not-contain the. recital of due service of the citation, and no proof was-offered “to show that the court did'.not, in fact, acquire jurisdiction.” (Gridley v. College of St. Francis Xavier, supra.) Such recitals aré made presumptive, and, in the absence of fraud or collusion, conclusive evidence. (Code Civ. Proc. § 2473.)
It appears that the examining counsel found in the course of the examination of the title that there was absence from the files of' proof of. service upon these heirs. I am inclined to think that under the authorities he was not justified to rest merely upon this-discovery and then to allege that this defect was sufficient ground, for a rejection of the title, but was bound to “ exercise the reasonable care and diligence of a good and faithful expert in that business, to ascertain the defendant’s true title.” (Moot v. BusinessMen’s Investment Assn., 157 N. Y. 201, 208; Grace v. Bowden, 10 App. Div. 541.)
The judgment must be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.