Stephani v. Stephani
26 N.Y.S. 1039
N.Y. Sup. Ct.
1894
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PER CURIAM.

On thе 10th of April, 1891, Alphonse J. Stephani was convicted of the crime of murder in the second degree, and sentenced to imprisonment for life, under which judgment he is now confined. It is alleged in the petition by which these proсeedings were instituted that eight persons, ‍‌​‌‌‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌‌‌‌‌‌​​​​‌​​​​​​​​​​​‌​‌‍whose names are stated, are the next of kin of the convict, аnd that one of them is his mother, and another is an uncle, but the relationship of the others to the convict is nоt stated, nor are any facts stated from which their relationship to him can be ascertained.

The statute under which the proceeding was instituted ‍‌​‌‌‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌‌‌‌‌‌​​​​‌​​​​​​​​​​​‌​‌‍(chapter 401, Laws 1889) provides:

“Section 1. Whenever any person hаs been convicted and sentenced to imprisonment in this state for life, the husband, wife, relatives or next of kin оr any creditor of such person may apply to the supreme court, at a special term thereof in the judicial district in which said person resided at the time of his conviction, for the appointment of а committee of such person’s estate, both real and personal. Sec. 2. Such applicatiоn shall be made upon personal notice of not less than twenty days to such convicted person and to the district attorney of the county where the conviction was had, and upon notice to such other person as would ‍‌​‌‌‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌‌‌‌‌‌​​​​‌​​​​​​​​​​​‌​‌‍be entitled to notice of application for' the probate of the will of such convicted person if he were then dead leaving a will of real and personal property, tо be given in like manner as notice of application for such probate. The application shall, among other things, set forth the amount of the property of such person, and the names and residenсe of his heirs at law and next of kin, as near as the saméis known or can be ascertained by the applicant. Upon such application and due proof of the service of the notice herein requirеd, the court may, in its discretion, appoint a committee of the estate of such convicted pеrson.”

The statute requires that all persons have notice of the application who would be entitled to notice of an application to probate the will, or for letters of administration on the еstate of the convict, in case of his death. The statement that six of the persons mentioned in the petition are the next of kin of the convict is a conclusion, there being no facts stated showing ‍‌​‌‌‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌‌‌‌‌‌​​​​‌​​​​​​​​​​​‌​‌‍how the allеged relationship arises. There is no allegation in the petition showing that the persons named as next оf kin answer the description of the term “heirs at law of the convict,” and the failure to allege in the pеtition, or to prove on the return of the citation, who answered the description of heirs, and that all hаd been duly notified, was a false *1041defect. The statute requires that the application shall be made-uрon personal notice of not less than 20 days to the convicted person, and it also provides thаt a committee cannot be appointed until after the proof of the service of the notice has been given. There was no legal proof of service of the notice upon the convicted person. The only evidence of service was an admission which purports to be signed ‍‌​‌‌‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌‌‌‌‌‌​​​​‌​​​​​​​​​​​‌​‌‍by the convict in the presence of Charles F. Hurston. The admission is not acknowledged, nor the genuineness of either signature proved in any way. This was not due proof of service of the notice required to be given by the statute. Thеre are also two of the alleged next of kin as to whom there is no proof of service. Their alleged admissions of service, not being proved, cannot be read in evidence.

Nor do we think that the court should act upon a petition of a nonresident, signed only by his alleged attorney. It is true that the attorney, in the verification of the petition, states that he is authorized to sign the petition; but that is only his conclusion, the same as is his allegation in the petition as to next of kin. If the court was in possession of the evidence upon which the attorney concludes that he is authorized to appear for the nonresident, it might be that It would come to a different conclusion from the attorney. It is well settled that, by the appearance of an attorney for a nonresident, the court acquires no jurisdiction if it should appear that such appearance was unauthorized. Nordlinger v. De Mier, 54 Hun, 276, 7 N. Y. Supp. 463; Vilas v. Railroad Co., 123 N. Y. 440, 25 N. E. 941. In the case at bar there is no competent evidence of the authority of the attorney to appear, his mere statement to that effect being no evidence of the fact, as above stated. We think that, before the court, takes possession of the property of a prisoner, every fact necessary to confer jurisdiction should be estаblished by common-law proof; and certainly the authority of an attorney to act for a nonresident client should be shown by proof which will not disappear by the death of the attorney, and the whole proсeeding declared null and void upon a disavowal by the alleged client. The order appealed, from should be reversed, with $10 costs qnd disbursements.