181 A.D. 198 | N.Y. App. Div. | 1917
The complaint alleged that the plaintiff was the only heir and next of kin of one Charles E. Stevens, who died intestate on November 23, 1916; that the defendant, a married woman forty-seven years of age, separated from her husband, lived with the said decedent, who was seventy years of age and physically and mentally infirm, ostensibly as his housekeeper but really as his mistress; that defendant, with intent to obtain the property of decedent by coercion, fraud and deceit, induced decedent to adopt her as his child, which he did on September 15, 1916; that she continued her former relations’ with him for two months, when he died, and that thereafter she applied for and obtained letters of administration upon his estate, which was of the value of $10,000, upon the fraudulent representation of her relationship created by the adoption. Judgment is asked that the adoption and letters of administration be set aside, and for other relief.
The decision of this appeal requires the consideration of two questions, first, whether, on the allegations of the complaint plaintiff is entitled to relief; and, if so, second, whether such relief should be granted in a suit in equity, or the parties remitted to a motion to the surrogate, who made the order of adoption.
Until the enactment of chapter 352 of the Laws of 1915, adoption was confined to minors. By that act, for the first time in this State, adoption of a person of the age of twenty-one years and upwards was permitted. (Dom: Rel. Law
We have also reached the conclusion that relief may be granted in this action; and do not uphold respondent’s claim that a sufficient remedy exists in an application to the surrogate under section 2490 of the Code of Civil Procedure to vacate the order allowing and confirming the adoption. In Matter of Ziegler (161 App. Div. 589), which was an appeal from an order of the Surrogate’s Court denying a motion to set aside an agreement for, and the consent of the surrogate to, the abrogation of an adoption, Mr. Justice Scott, writing for this court in its First Department, doubted whether the Surrogate’s Court had jurisdiction to entertain the proceeding and to grant the relief desired, and said: “ The surrogate in giving his consent acts in his administrative and not in his judicial capacity, nor is the consent signed by bim in any sense a decree or order of the Surrogate’s Court. If the attempted act of abrogation is insufficient under the statute it may be attacked even collaterally, in any proceeding, and if for any reason it be deemed necessary that it be revoked in a judicial proceeding only a court of equity would have jurisdiction so to revoke it.” We perceive no difference in the nature of the act between the consent of the surrogate to the contract- of abrogation given under section 116 of the Domestic Relations Law (as amd. by Laws of 1915, chap. 352), and the order allowing and confirming the adoption,
We think the complaint states a cause of action, and that relief may be granted in this court.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Thomas, Stapleton, Mills and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
Since amd. by Laws of 1917, chap. 149.— [Rep