Reports of Cases Heard and Determined in the Supreme Court of the State of New York Volume 42

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1887 edition. Excerpt: ...await the payment in full of partnership debts before it was entitled to payment out of the assets. Besides this, it was the very thing submitted to the referee by both parties, by consent to adjudicate upon her claims against the estate, and the adjudication in a court having jurisdiction of the subject-matter and the parties was binding, and could only be reviewed by appeal. Fisher v. Hepburn, 48 N. Y., 41.) It was as valid as if commenced by ordinary process. (2 R. S., 89, 37.) As to the $2,000 note, the appellant was a surety. It was a joint and several note, and when the surety paid it she took the place of the debt, as one against the individuals who made the note and each of them. The decree should be reversed and the proceedings remitted to the Surrogate's Court, with directions to allow the appellant's claim as an individual debt against the estate, with cost6 to appellant out of the estate. Dtkman, J., concurred. Pratt, J. (dissenting): On the reference under the statute the order of distribution of the assets of the estate was not in question. That was not a question which the administrator could legally submit in that proceeding, and what was done in that respect was not binding on the other creditors. They now have, for the first time, the opportunity to be heard. The jurisdiction of a court to render a judgment can always be inquired into. The decree of the surrogate should be affirmed. Second Department, December Term, 1886. Decree of surrogate reversed and proceedings remitted, to the end that this appellant's claim be allowed as an individual debt. Costs of the appellant out of the estate allowed on appeal. CHAELES KAHT, As Executor, Etc., Of JULIUS E. KAHT, Deceased, Plaintiff, yJIENRY T. ATTRILL And Others, ...