Morrell a. Dennison,

his acts or to call his authority in question. It is now contended that the will was a fraudulent document, and that whether valid or not the surrogate of New York had no jurisdiction; that the letters testamentary issued by him were a nullity; and that Burrowes' assignment, as a consequence, and the satisfaction-piece which followed it were mere blank paper; leaving the mortgage, with all the arrears of interest, amounting together to over $12,000, to stand in full force, as a first incumbrance on the premises.

The law declares (2 Rev. Stats., 221, 69) that the surrogate of each county shall have "exclusive jurisdiction" to take the proof of the wills of deceased persons, who at, or immediately previous to their deaths were "inhabitants of the county of such surrogate, in whatever place such death may have happened;" and that the surrogate who takes the proof of the will "shall issue letters testamentary thereon." That Mr. Talmadge died in Columbia county is, therefore, a point of no consequence. The question is, was he at the time, or immediately previous, an inhabitant of that county?

His original domicil was at Hempstead, on Long Island. He there had a farm or country-seat, which, on going to Europe, he let to a tenant, declaring, it is said, at the same time, his purpose not to return to it. He remained in France a year or eighteen months, with his family. When he came back, the fair inference, I think, from the testimony, is, that he continued, after leaving the ship, for a few weeks in New York, looking after his real estate and his other property, of which, his sister says, Burrowes had the charge during his absence. Mr. Genet, his cousin, testifies that he came to his house in Greenbush, "a week or two" after his arrival from France. At Genet's he remained only "a few days." He then took board at a public house in Schodack, where his youngest child was born, and where he "resided," as Genet calls it, "some four months," and then removed to another public house in Hudson, and there "resided" again another four months, until he died.

The question on this evidence is not, was Talmadge actually an inhabitant of Columbia county ?-but, was the surrogate of New York necessarily wrong in deciding, on the evidence before him, that the deceased was an inhabitant of New York? After the lapse of so many years, and the death of at least three most

1

Morrell a. Dennison.

important witnesses, and the absence of another equally important, to sustain the jurisdiction, the testimony now given, as it seems to me, even if admissible, is too slight and equivocal to overthrow the presumption which the law inculcates in favor of judicial acts. When the probate took place, Mrs. Talmadge, the widow, since deceased, was living and of full age, and, as we may infer from the citation, present in court; Mr. Taylor, the brother-in-law, also since deceased, was living and participated in the proceeding; Mr. Burrowes, now absent from the country, the executor, who propounded the instrument and swore to the residence in New York, was on the spot ready to be cross-examined, and if possible confuted; and the two infant children were duly represented by a guardian appointed by the surrogate to watch over their interests. Mrs. Talmadge, too, although she considered the will, as well she might, to be a most unjust disposition of her husband's estate, took no steps during the many subsequent years of her life to call the probate in question, either by appeal or in any other mode; and for aught that appears-and the inference after the lapse of so many years is a legitimate one-accepted from and through Burrowes, as the duly appointed executor, the provision made for her by the instrument which he called, truly or not, her husband's will.

All these circumstances, and more might be specified, although in the view now taken not technically conclusive, are sufficient to counterbalance the loose evidence to which I have referred, given after the lapse of eighteen years from the date of the transaction. It might well have been that the deceased, "immediately previous to his death," had a temporary lodgingplace in the city of New York, as well as in the city of Hudson, without being permanently settled in either or anywhere elsean inference which is strengthened by the fact that immediately after his death his family are found living in New York.

As matter of fact, therefore, the court I think, under the circumstances, is justified, if necessary, in finding that the deceased, within the meaning of the statute, was an inhabitant of the city of New York-sufficiently so, at least, to give the surrogate jurisdiction.

I should say, however, that I am not prepared to admit that such a finding is necessary to sustain the defence. Where the jurisdiction of a subordinate tribunal, having cognizance of the

Morrell a. Dennison.

general subject, has attached, by the presentation of a verified prima facie case and by the appearance of the parties, its decision, even on a quasi jurisdictional fact, such as that of inhabitancy, must be conclusive, unless reversed on appeal. To allow it to be called in question collaterally, and on every occasion and during all time, would be destructive of all confidence. No business in particular depending on letters testamentary or of administration could be safely transacted. Payments made to an executor or administrator, even after judgment, would be no protection. Even if the debtor litigated the precise point, and compelled the executor to establish it by proof, the adjudication would avail him nothing, should a subsequent administrator, as in this case, spring up, and, after the lapse of the fifth of a century, demand payment a second time, when a scintilla of evidence on one side remained, and all on the other had perished. A large number of titles, too, depend for their validity on decrees of foreclosure, and these decrees are often made in suits instituted by executors or administrators, or their assigns. Must these, too, be subject to be overhauled at any period, however remote, on the nice question of residence?-a question often difficult to decide where the facts are clear, and much more so, of course, where the facts are obscured by lapse of time and loss of documents and witnesses.

The doctrine contended for by the plaintiff, and indispensable to his success, is, I think, altogether too dangerous for judicial

sanction.

The complaint, therefore, on that ground, as well as on the mere issue of fact, should be dismissed.

Foster a. Prince.

FOSTER a. PRINCE.

Supreme Court, First District; General Term, May, 1859.

SUPPLEMENTARY PROCEEDINGS.-EXAMINATION OF THIRD PARTY.— APPEAL.

The examination in supplementary proceedings of a debtor to the judgment debtor, or of those having property belonging to him, under section 294 of the Code, may be ordered in the county in which such third party resides, without reference to the residence of the judgment debtor.

It seems, that the judgment debtor is not entitled to notice of such examination. The judgment debtors appeared on the return of an order for the examination of a third party, for the purpose merely of objecting to the granting of any order affecting their rights, and the judge made an order directing the third party to pay over to the plaintiff moneys belonging to one of the judgment debtors. Held, that the judgment debtors could not maintain an appeal from such order.

Appeal from an order in supplementary proceedings.

The plaintiff in this action made an affidavit that he had obtained judgment therein against the defendants for a sum specified; that the judgment-roll was filed in the office of the clerk of the city and county of New York; and stating further, "that an execution thereon against the property of the judgment. debtors has been duly issued to the sheriff of the city and county of New York, and the sheriff of the county of Queens; that the judgment debtors resided in said county of Queens at the time of issuing such execution, and still so reside, and that the Fulton Bank, in the city of New York is indebted to the judg ment debtors in an amount exceeding ten dollars." Upon this affidavit the plaintiff obtained ex parte from a justice of the Supreme Court, in the first district, an order which, after reciting the facts shown by the affidavit, concluded as follows: "I do hereby require the said Fulton Bank, William J. Lane, the cashier thereof, to appear before me at the chambers of this court in," &c., "on the 30th day of November, 1858, at 10 o'clock in the forenoon, and be examined concerning the

Foster a. Prince.

same. And the said Fulton Bank and its officers are hereby forbidden to transfer the property of said defendants now in their hands, or otherwise dispose of the same, or in any way interfere therewith until further order in the premises."

This order was made on the 22d day of November, and on the same day it was with a copy of the affidavit served on the cashier of the Fulton Bank, and copies of the order and affidavit, with a notice indorsed that the within were copies of such order and affidavit, were on the same day deposited in the postoffice in the city of New York, addressed to the defendants at Flushing, Long Island, and the postage paid thereon.

On the return day of the order the cashier of the Fulton Bank appeared pursuant to its requirement, before Mr. Justice Clerke, and submitted without objection to examination. He testified that the bank kept an account with Wm. R. Prince, one of the defendants, but none with Wm. Prince the other. That there was then to the credit of Wm. R. Prince, in account, the sum of $198.55 due him from the Fulton Bank.

Upon the examination, counsel for the defendants appeared for the purpose of raising objections on their behalf to the making of any order affecting them.

The court, however, made an order that the bank pay over to the plaintiff or his attorneys the sum appearing to be due from them to one of the defendants.

From this order the defendants now appealed.

Henry Bleekman, for the appellants.-I. The order in this case granted by Justice Clerke was a nullity, because the Code does not contemplate that proceedings of this nature can be had in any other county than that where the judgment debtor resides. The affidavit upon which the first order was granted, showed that both defendants reside in Queens county, and the order is made returnable in New York.

II. The Code contemplates that the plaintiff shall proceed first under section 292, and that proceedings under section 294 are to be taken merely in aid of the principal proceeding against the judgment debtor, and must be had in connection with section 292, and cannot be resorted to independently of any proceeding against such judgment debtor. (Sherwood a. The Buffalo and New York City Railroad, 12 How. Pr. R., 136;