Van Dusen v. Sturm

257 A.D. 914, 12 N.Y.S.2d 133, 1939 N.Y. App. Div. LEXIS 8381

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1939
• Status: Published

Opinion

Order reversed on the law, with ten doEars costs and disbursements, and motion denied, with ten doEars costs. Memorandum: The complaint has been dismissed upon the ground that the Surrogate’s Court of Steuben county did not have jurisdiction to grant letters of administration upon the estate of plaintiff’s intestate. The petition for letters of administration, the complaint and the affidavits upon which the motion to dismiss the complaint was made, show that decedent was a resident of the State of Pennsylvania; that he was injured in a coEision of motor vehicles in Steuben county and died in that county; that his administratrix has a cause of action for his wrongful death against two residents of Binghamton, Broome county, N. Y. The Surrogate’s Court of a county has jurisdiction to grant letters of administration when the decedent is not a resident of the State but died in that county, leaving personal property within the State. (Surr. Ct. Act, § 45, subd. 2.) The decedent was a non-resident of the State and died in the county of Steuben. The cause of action for the wrongful death of decedent against two residents of Binghamton was personal property situate in New York State. (Surr. Ct. Act, § 47.) Therefore, the Surrogate’s Court of Steuben county had jurisdiction to grant letters of administration to Josephine Van Dusen under the provisions of section 45, subdivision 2, of the Surrogate’s Court Act. Subdivision 3 of section 45 of the Surrogate’s Court Act does not affect the jurisdiction of the Surrogate’s Court in this case, as that subdivision applies only when the decedent died without the State of New York. Ah concur. (The order grants defendant’s motion to dismiss the complaint in an automobile negligence action.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.