Pound, J.
Letters of administration on the estate of Bridget Ditton, deceased, were issued to defendant Tuite by the Surrogate’s Court of Richmond county on June 27, 1900. Defendant American Surety Company became the surety on his administrator’s bond which was in the penal sum of $20,000.
In April, 1904, the surety company instituted proceedings under section 812 of the Code of Civil Procedure, then in force, to be relieved from further liability as
surety for Tuite as such administrator. On April 27, 1904, the surrogate made an order directing Tuite to file a.new bond within five days. Tuite did not file the bond. The Code section provided:
“
If the principal fail so to file such new bond within the time specified, a decree or order must be made revoking the appointment of such principal or removing him and requiring him to * * * account and file such account within twenty days.” No such order was made. Although prepared and presented to the surrogate, it was never signed. This court has held
(Matter of Thurber,
162 N. Y. 244) that the expression “ a decree
must
be made ” does not deprive the surrogate of discretion but means merely that
“
a decree
may
be made.” It is not contended that Tuite was ever formally removed as such administrator. Litigation in the Supreme Court then intervened. Margaret Gallagher, in an action against Tuite, as administrator, sought to establish a contract between herself and the intestate whereby the intestate agreed that all her property should pass at her death to the claimant in consideration of the performance of certain duties. " In December, 1907, after the lower courts had upheld the contract and taken and stated the administrator’s account, this court reversed and held that the judgment could not be sustained.
(Holt
v.
Tuite,
188 N. Y. 17.) The matter then rested until July 6, 1922, when Mary Hornby Lapiedra, the plaintiff herein, a one-third distributee of the estate, presented her petition to the Surrogate’s Court of Richmond county for letters of administration
de bonis non.
The petition contains an allegation, made, apparently, through carelessness in examining the papers on file in the Surrogate’s Court (not of the present attorney of record), that Tuite had been removed as administrator on April 27, 1904. A citation was issued thereon and service thereof was made on the defendants. The defendant surety company appeared on the return day. No objection was made to the issue of letters
de bonis non,
and
letters were issued accordingly. The new administrator instituted discovery proceedings against Tuite and the surety company. They appéared, asked leave to file their account, which was granted but they did not file an account. Thereupon the surrogate, on plaintiff’s petition, made an order authorizing plaintiff to bring this action on the official bond of Tuite to recover the value of any assets received by the principal and not duly administered by him, both individually, as a person aggrieved (Surrogate’s Court Act, § 115) and as administrator
de bonis non
(Surrogate’s Court Act, § 114). The action was begun on November 27, 1923, for an accounting and a money judgment thereon. The case was tried before a referee who directed judgment for plaintiff.
The Appellate Division reversed upon the law and dismissed the complaint. The basic reason for dismissing the complaint was that the appointment of plaintiff as administrator
de bonis non
and the granting of letters to her are void, the record showing that the prior administrator is living and that his letters have never been revoked.
Indubitably, the removal proceedings instituted by the surety company in 1904 never went further than the order requiring Tuite to file a new bond. Although he was in default under that order, his letters were not revoked. The Surrogate’s Court has jurisdiction to revoke letters of administration and jurisdiction to appoint a successor in place of a person whose letters .have been revoked. (Surrogate’s Court Act, § 40, subd.
2;
§ 136.) It has jurisdiction in any proceeding before it of parties who have been cited. (Surrogate’s Court Act, § 41, subd. 2.) It obtains jurisdiction to make a decree by the existence of the jurisdictional facts prescribed by statute. (Surrogate’s Court Act, § 42.)
Section 43 of the Surrogate’s Court Act provides:
“ Where the jurisdiction of a Surrogate’s Court to make a decree or other determination is drawn in question
collaterally, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate’s Court.”
Section 80 thereof provides:
“ Every decree of a Surrogate’s Court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained.”
The question presents itself whether the letters issued to plaintiff are subject to collateral attack. A vacancy is a jurisdictional fact. If there is no vacancy, obviously there is no jurisdiction of the subject-matter. The point is whether defendants can resort to the records of the Surrogate’s Court to establish the fact that no vacancy existed when plaintiff was appointed or whether they are bound by the allegation of jurisdictional facts in the petition and the determination of the court thereon. The conclusiveness of the decrees of a Surrogate’s Court has been sweepingly upheld in many cases. It has been said in the broadest terms: “ Where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in a particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated.”
(O’Connor
v.
Huggins,
113 N. Y. 511.) This rule, however, implies that the Surrogate’s Court shall exercise its judicial functions in the matter and actually pass upon the questions of jurisdiction.
(Roderigas
v.
East River Savings Bank,
76 N. Y. 316.) It need not take evidence, because its jurisdiction to make the determination drawn in question is “in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional fact's, contained in a writtenpetition.” (Surrogate’s Court Act, § 43,
supra.)
The allegation in the petition
herein is
“
that on or about the 27th day of April, 1904, said Thomas W. Tuite was removed as such administrator by order of this Court ” (the Surrogate’s Court of Richmond county). This allegation, though innocently made, was untrue and, because it was untrue as to a matter of record of which the petitioner was chargeable with notice, it amounted to a constructive fraud on the court of the same nature and effect as an actual and deliberate misrepresentation of fact.
(People
v.
Federated Radio Corp.,
244 N. Y.
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Pound, J.
Letters of administration on the estate of Bridget Ditton, deceased, were issued to defendant Tuite by the Surrogate’s Court of Richmond county on June 27, 1900. Defendant American Surety Company became the surety on his administrator’s bond which was in the penal sum of $20,000.
In April, 1904, the surety company instituted proceedings under section 812 of the Code of Civil Procedure, then in force, to be relieved from further liability as
surety for Tuite as such administrator. On April 27, 1904, the surrogate made an order directing Tuite to file a.new bond within five days. Tuite did not file the bond. The Code section provided:
“
If the principal fail so to file such new bond within the time specified, a decree or order must be made revoking the appointment of such principal or removing him and requiring him to * * * account and file such account within twenty days.” No such order was made. Although prepared and presented to the surrogate, it was never signed. This court has held
(Matter of Thurber,
162 N. Y. 244) that the expression “ a decree
must
be made ” does not deprive the surrogate of discretion but means merely that
“
a decree
may
be made.” It is not contended that Tuite was ever formally removed as such administrator. Litigation in the Supreme Court then intervened. Margaret Gallagher, in an action against Tuite, as administrator, sought to establish a contract between herself and the intestate whereby the intestate agreed that all her property should pass at her death to the claimant in consideration of the performance of certain duties. " In December, 1907, after the lower courts had upheld the contract and taken and stated the administrator’s account, this court reversed and held that the judgment could not be sustained.
(Holt
v.
Tuite,
188 N. Y. 17.) The matter then rested until July 6, 1922, when Mary Hornby Lapiedra, the plaintiff herein, a one-third distributee of the estate, presented her petition to the Surrogate’s Court of Richmond county for letters of administration
de bonis non.
The petition contains an allegation, made, apparently, through carelessness in examining the papers on file in the Surrogate’s Court (not of the present attorney of record), that Tuite had been removed as administrator on April 27, 1904. A citation was issued thereon and service thereof was made on the defendants. The defendant surety company appeared on the return day. No objection was made to the issue of letters
de bonis non,
and
letters were issued accordingly. The new administrator instituted discovery proceedings against Tuite and the surety company. They appéared, asked leave to file their account, which was granted but they did not file an account. Thereupon the surrogate, on plaintiff’s petition, made an order authorizing plaintiff to bring this action on the official bond of Tuite to recover the value of any assets received by the principal and not duly administered by him, both individually, as a person aggrieved (Surrogate’s Court Act, § 115) and as administrator
de bonis non
(Surrogate’s Court Act, § 114). The action was begun on November 27, 1923, for an accounting and a money judgment thereon. The case was tried before a referee who directed judgment for plaintiff.
The Appellate Division reversed upon the law and dismissed the complaint. The basic reason for dismissing the complaint was that the appointment of plaintiff as administrator
de bonis non
and the granting of letters to her are void, the record showing that the prior administrator is living and that his letters have never been revoked.
Indubitably, the removal proceedings instituted by the surety company in 1904 never went further than the order requiring Tuite to file a new bond. Although he was in default under that order, his letters were not revoked. The Surrogate’s Court has jurisdiction to revoke letters of administration and jurisdiction to appoint a successor in place of a person whose letters .have been revoked. (Surrogate’s Court Act, § 40, subd.
2;
§ 136.) It has jurisdiction in any proceeding before it of parties who have been cited. (Surrogate’s Court Act, § 41, subd. 2.) It obtains jurisdiction to make a decree by the existence of the jurisdictional facts prescribed by statute. (Surrogate’s Court Act, § 42.)
Section 43 of the Surrogate’s Court Act provides:
“ Where the jurisdiction of a Surrogate’s Court to make a decree or other determination is drawn in question
collaterally, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate’s Court.”
Section 80 thereof provides:
“ Every decree of a Surrogate’s Court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained.”
The question presents itself whether the letters issued to plaintiff are subject to collateral attack. A vacancy is a jurisdictional fact. If there is no vacancy, obviously there is no jurisdiction of the subject-matter. The point is whether defendants can resort to the records of the Surrogate’s Court to establish the fact that no vacancy existed when plaintiff was appointed or whether they are bound by the allegation of jurisdictional facts in the petition and the determination of the court thereon. The conclusiveness of the decrees of a Surrogate’s Court has been sweepingly upheld in many cases. It has been said in the broadest terms: “ Where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in a particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated.”
(O’Connor
v.
Huggins,
113 N. Y. 511.) This rule, however, implies that the Surrogate’s Court shall exercise its judicial functions in the matter and actually pass upon the questions of jurisdiction.
(Roderigas
v.
East River Savings Bank,
76 N. Y. 316.) It need not take evidence, because its jurisdiction to make the determination drawn in question is “in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional fact's, contained in a writtenpetition.” (Surrogate’s Court Act, § 43,
supra.)
The allegation in the petition
herein is
“
that on or about the 27th day of April, 1904, said Thomas W. Tuite was removed as such administrator by order of this Court ” (the Surrogate’s Court of Richmond county). This allegation, though innocently made, was untrue and, because it was untrue as to a matter of record of which the petitioner was chargeable with notice, it amounted to a constructive fraud on the court of the same nature and effect as an actual and deliberate misrepresentation of fact.
(People
v.
Federated Radio Corp.,
244 N. Y. 33, 38.) It was a fraud upon the court, directly affecting the jurisdiction of the court. The court acted on the allegations of the petition. If the fact had been brought to its attention that Tuite’s letters had not been revoked, it might have revoked them. The trouble is that it acted on the petition alone, which was untrue in this regard. The inference is, therefore, impossible that when the court issued letters
de bonis non
it consciously revoked the prior letters. The court was induced to exercise its authority where it had no jurisdiction. The plaintiff’s letters were not fairly obtained and were, therefore, left open to collateral attack.
(Mandeville
v.
Reynolds,
68 N. Y. 528;
Hoes
v.
N. Y., etc., R. R. Co.,
173 N. Y. 435; 1 Freeman on Judgments [5th ed.], § 331;
Ferguson
v.
Crawford,
70 N. Y. 253, 267.)
As to the contention that the defendants are
in pari delicto
with plaintiff in suppressing. the facts before the Surrogate’s Court and should, therefore, be required to resort to direct attack on the letters, it can only be said that the Surrogate’s Court had no jurisdiction over the subject-matter- — the appointment of an administrator
de bonis non.
Its letters were, therefore, void in the strictest sense, not merely void as against strangers to the proceeding. Tuite remains the administrator of the estate and may assert his rights as such.
The Statute of Limitations has clearly run against plaintiff individually. There must be an accounting
before there is a liability
(Matter of Rogers,
153 N. Y. 316) and default on the bond has not been established.
The judgment should be affirmed, with costs.
Cardozo, Ch. J., Crane, Lehman, Kellogg and O’Brien, JJ., concur; Andrews, J., dissents.
Judgment affirmed, etc.