In re the Accounting of Walko

207 Misc. 35, 136 N.Y.S.2d 407, 1955 N.Y. Misc. LEXIS 2683

• Court: New York Surrogate's Court
• Decided: January 7, 1955
• Status: Published

Opinion

McGrath, S.

While the attorneys retained by the “ Chief of the Consular Division of the Embassy of Czechoslovakia in Washington, D. C.” acting on behalf of his nationals herein, have filed proof of the commission issued to the consular officer by his Government, they have failed to furnish evidence of the issuance of an exequatur.

The court is of the opinion that proof of the consular officer’s recognition by the Department of State should be furnished (see Hackworth’s Digest of Int. Law, p. 671).

The time to file such proof will be extended to February 7, 1955, and determination of this motion to examine the administrator pursuant to section 263 of the Surrogate’s Court Act will be withheld until such time.

The contention of the administrator that in the absence of a treaty between the United States and the present Republic of Czechoslovakia, a consular officer of Czechoslovakia has no authority to appear for his nationals, is without merit.

The rights, powers and duties of consuls and consular officers rest on international law as well as on statute, regulation and treaty stipulations (3 C. J. S., Ambassadors & Consuls, p. 1026).

Our courts have consistently given recognition to the power of a foreign consular officer recognized by our Government to assert or defend the property rights of his nationals irrespective of whether or not he has been accorded the right to represent them in court by provision of treaty or otherwise (Matter of Zalewski, 292 N. Y. 332, 339, 340).

Proceed accordingly.