#### G. BRUCE BROWN, as Administrator, etc., Respondent, *v.*GEORGE I. LANDON, Appellant.

*Letters of administration*— •the *action of a surrogate in issuing them cannot be attaches,*coltatei-ally— *a power of attorney may be acknowledged before a vice-consul.*

This action was brought upon three promissory notes made by the defendant to the order of the plaintiffs intestate. It appeared that the intestate died in London, leaving a will which it was claimed had been there admitted to probate. The plaintiff applied under a power of attorney executed by a temporary administrator and an executor, who had been appointed in England, for ancillary letters of administration as provided by sections 2695, 2696 of the Code of Civil Procedure. The petition for the letters was in proper form and stated all facts required to sustain the application. The papers produced in support of it, however, were irregular and insufficiently authenticated.

*Meld,*that as the subject to which the proof was directed, the granting of ancillary letters of administration, was clearly within the jurisdiction of the surrogate, the validity of the letters granted by him thereon could not be attacked collate*58rally in this action; even though it could he shown that he erred in granting them and that his determination would have been reversed upon appeal.

*Rodorigas*v. *Bast Rivw Swings Institution*(63 N. Y., 460, and Id.,76 N. Y., 316), followed.

A power of attorney may he acknowledged before a vice-consul of the United States.

Appeal from a judgment in favor of tbe plaintiff, entered on tbe verdict of a jury, and also from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried.

*John E. Parsons,*for tbe appellant.

*Erwvrí 1. Spink,*for tbe respondent.

Daniels, J.:

Tbe recovery was for tbe amount due upon three promissory notes made by tbe defendant and payable to tbe order of J"ames Landon, tbe decedent. No point bas been made questioning tbe liability of tbe defendant upon the notes; and as that fact appears by tbe evidence to have been reasonably well established on tbe trial, it, will not be taken under consideration in tbe disposition of tbe appeal.

Before tbe commencement of tbe action tbe plaintiff upon bis own petition bad been appointed by tbe surrogate, of tbe county of New York tbe administrator of so much of the goods, chattels and credits of tbe decedent as were left by him in this State at the time of bis decease. And it is tbe legality of that appointment which bas been drawn in question on tbe argument of this appeal.

Tbe decedent died in London, in England, where it was alleged in support of tbe application he left a will making a disposition of bis estate. And tbe application for tbe plaintiff’s appointment resulting in tbe order made by tbe surrogate was made under tbe authority of tbe provisions of the Code, which authorized tbe issuing of ancillary letters testamentary and of administration. (Code of Civil Procedure, §§ 2695, 2696, 2697.) Tbe petition for tbe letters was in proper form and included tbe statements required to sustain tbe application. But tbe papers produced in support of it were irregular and insufficiently authenticated. Eor this purpose tbe law required an exemplified copy of the will and of tbe foreign *59letters issued upon its probate, together with the judgment or decree admitting it to probate. And by- section 952 of the Code of Civil Procedure the manner in which these documents were to be authenticated was prescribed by the legislature, but there was a failure to comply with these provisions of the Code. A certificate of the registrar of the probate court was added to what was alleged to be a copy of the will, and to hardly .an intelligible statement of the. ■action taken upon the application for its probate. And these certificates were authenticated simply and solely by the certificates of the vice and deputy consul-general of the United States in London, who also certified himself to be a notary public of the United States. But that was not such an authentication ■ of the documents as the statute upon this subject in very plain language directed should be made to authorize the papers themselves to be read in evidence.

The surrogate, however, acted upon this proof, irregular and deficient as it clearly was. But his action was upon a subject-matter confided to his jurisdiction, and his determination and decree upon it cannot be disregarded collaterally because of these defects in the proceedings. It is clear that upon an appeal the determination would be reversed. But it does not follow from that circumstance that it was void. The subject-matter to which the proof was directed was clearly within the jurisdiction of the surrogate, and that was, to grant ancillary letters testamentary or of administration upon the estate of the deceased party; and he did have evidence before him tending to establish the facts upon which his authority was by law required to be exercised; and as he exercised his judgment upon that proof and made his determination directing the issuing of the letters it cannot be disregarded in this action simply because he erroneously allowed this defective and iia-egular proof to be given. To avoid that result it was sufficient that the proof had a legal tendency to establish the facts required to 'be shown, and that it should have been rejected because of the manner of its authentication will not invalidate his decree to such an extent as to allow it to be held void when brought collaterally in controversy as it was upon the trial of this action. This subject Was very fully considered in *Roderigas*v. *East River Savings Institution*(63 N. Y., 460), and in *Roderigas*v. *The Same*(76 id., 316), where it was held that proof tending to establish the right of *60tbe applicant to redress, although it may be substantially defective, is sufficient to sustain such letters .against the objection taken to them in this case.

The power of attorney from the administratrix appointed in the foreign proceedings, and from the son of the decedent, who was nominated as one of his executors, the others having probably declined to act, was also produced in support of the plaintiffs application. This was in like manner proved ..by the certificate of the same vice-consul. But the acknowledgment of this document could properly be taken before such an officer (2 R. S. [6th ed.], 1142, § 11); for while he acted in that capacity he was entitled to exercise the authority vested by law in the consul himself. (U. S. R. S., §§ 1695, 1674, sub. 3.)

This instrument was accordingly in such a condition as allowed it to be legally received as evidence so far as it extended in support of the application, and by that the plain tiff was expressly authorized to make the application to the surrogate and to receive the letters which were issued by him. And as these letters were issued upon proof tending to establish the right to them, although it was defective and irregular, they became conclusive in favor of the plaintiff’s right to maintain this action. *(Parhan*v. Moran, 4 Hun, 717.) And this is the effect which the Code has prescribed, that letters testamentary, letters of administration and letters of guardianship shall have when they may be granted by a court or officer having jurisdiction to issue them. (Code of Civil Pro., § 2591.) And this provision is rendered applicable to letters of this description by section 2702. For these reasons the defendant cannot successfully resist the right of the plaintiff to maintain this action for the recovery of the amount due upon the notes. The acceptance by the surrogate of the defective proof, as long as it tended to establish the facts required to support the application, was an error only, which could be no otherwise corrected than by an appeal from his order or decree.

The law will not allow his erroneous action to be set aside in this manner. The judgment should, therefore, be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.