Pettigrew v. Foshay

19 N.Y. Sup. Ct. 483

• Court: New York Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Brady, J.:

It appears in this case that the defendant Jane Foshay commenced an action against the administrators of John W. Pettigrew, deceased, to recover for services rendered as nurse and housekeeper of the deceased. The action thus commenced was compromised by the payment of $17,000, and upon her solemn asseveration in writing that she was not the lawful wife of the deceased in his lifetime. Subsequently, she filed her petition in the Surrogate’s Court of this county, stating that she was the widow of the deceased, and that letters of administration were issued without notice to her, and praying that they might be revoked and letters of administration upon the estate of the deceased issued to her as his widow by law entitled thereto. This action was commenced to prevent the litigation of that question before the surrogate, and on the proposition, among others, that she was estopped by her solemn act aforesaid from presenting the claim, interposed by her petition, to the surrogate. The plaintiffs, as heirs at law and next of kin, and having an interest in the subject, asked for an injunction restraining her from proceeding before the surrogate as contemplated by her, alleging, among other facts, that she was irresponsible, except so far aa the balance of the $17,000 paid to her might remain unexpended. The motion for the injunction was denied, and hence this appeal. The relief sought by it seems to have been denied, upon the ground that the surrogate has ample power to determine who is entitled to letters, and to vacate them if improperly issued. This action, however, has a much wider sweep. It presents the question whether the defendant can be permitted, under the circumstances, to urge her claim at all, and the plaintiffs have a right to test that question in this action. The surrogate might decide on the facts that the defendant was not entitled to letters, but the decision would rest upon the evidence relative to the fact of the marriage. The surrogate does not possess the equitable jurisdiction which enables him to employ the strong arm of equity to prevent abuses in the administration of justice — to prevent, in other words, the legal machinery of his court from being put in motion, which is the object of this action. If the only question herein presented was the marriage, there might be great force in the proposition that the surrogate must be permitted to investigate that subject, with reference to the issuing of letters of administration. Such is not the fact, however, and, as suggested, the sphere of this action is much broader, striking at the right of the defendant to begin or continue such proceedings after her declaration which, if true, shows conclusively that she ought not to be allowed to appear as a litigant.

For these reasons, the order appealed from must be reversed and the cause remitted to the Special Term, as the defendant does not appear to have been heard there.

The costs of this appeal to the plaintiff must abide the event.

Davis, P. J., and Daniels, J., concurred.

Order reversed, cause remitted to the Special Term; costs of this appeal to the plaintiff must abide the event.