In re Ziegler

161 A.D. 589, 13 Mills Surr. 9, 146 N.Y.S. 881, 1914 N.Y. App. Div. LEXIS 5417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1914
• Status: Published

Opinion

Scott, J.:

The matters at issue and the questions of law involved are so fully and satisfactorily dealt with in the opinion of Mr. Surrogate Fowler (82 Mise. Rep. 346), which we adopt, that any further discussion at the present time is unnecessary.

We entertain some doubt, however, whether the Surrogate’s Court has jurisdiction to entertain the proceeding and to grant the relief desired. That court is one of strictly limited statutory jurisdiction and has no general equity powers. The proceedings, under the Domestic Relations Law (Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 66; now Consol. Laws, chap. 14 [Laws of 1909, chap. 19], § 116, as amd. by Laws of 1913, chap. 38), for the abrogation of an act of voluntary adoption consist of an agreement executed by the parties interested, and the consent of the county judge or the surrogate. They are not judicial in their character and the surrogate in giving his consent acts in his administrative and not in his judicial capacity, nor is the consent signed by him 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.

For this reason as well as for those so well stated by Mr. Surrogate Fowler, the order appealed from must be affirmed, with costs.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ.. concurred.

Decree affirmed, with costs.