The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-09-15
Supreme Court-General Term.
THE BARKER WILL CAsE--JURIsDICTION OF sURRs
GATES.


THE BARKER WILL cAsE-JuRIsDIcTIoN OF suRao
GATES.
James, Adminisrdtor, Adams, 6c.-RooKvMr
Judge-The plaintiff sues as administrator Of Barker His
authority sad is void, because the proper parties
not duly cited before the Surrogate Concedng the
objection be well founded in fact Is not we'll taken
law The Surrogate Of Albany obtained jurisdiction Of the
subject not by the citations but by the residence of the
interstate within the county OF Albany at the time OF his
death. That fact gave the Surrogate Of Albany county
the sole and exclusive power" grant letters Of adm
nstraon on the estate of the deceased. OR s.,
In other words it the only jurisdictiona fact All
other provisions Of the statute directory and the
vacate or an appeal to reverse Il made or taken in the
proper tribunal and within the proper time; but not of
objection, coaeray to the validity Of the letters to be
sprung upon the parties at any period, however remote
and under any inconven lent and
unsuitable for lis consideration Sheldon Us. Wright Il
Selden, 500 There error, therefore, In the
referees decision that the plaintiff To be regarded in
this suit as the legal representative Of Barker.
The next objection relates to the amount allowed
Barker IL appears ticket agent Of the railroad
pany Shortly before his death, which occurred on the
4h Of January 1851 he deposited with the defendants,
who were brokers 1910 10 IN current money received by
him as such agent The defendants mingled this money
with their that it became VI distinguishablc.
Nevertheless four days after death, they paid
an equivalent amount TO the Secretary of the Company
taking indemnify The referee refused TO allow the
payment either partially wholly. In this decisionto
the extent Of $50-we think he erred. After crediting
all Barker's demands against the company there
still $3.50 on which he had no claim 1t was the money Of
the company and il il could not be restored specifically
it not for Barker or for standing in his shoes TO
raise the objection that the defendants hs agents.
turned only its equivalent There manifest equity
that in the claim Of the company and
ground for the position implicitly assumed, that the de-
PENDANTS bound to up their wrong that of
their principal defeat IT, As to the rest Of the 1915 IS
the company having jus. right, either legal equitable,
TO demand it, could Of give valid discharge
on It's receipt The payment T. that extent, IN law
conversion Of the money by the defendants Under all
the facts we think interest was properly allowed The
defendant, Adams. who examined witness, did
pretend that his firm had made interest II is the
business of brokers to make money yield interest and
if the defendants without any fault OF their own failed
in this instance 10 do they could easily have shown
the fact We do do not mean however, TO be understood
holding that the had Il been shown, would
have released them from the liability pay interest espe
cally on the two leading items OF the account. On the
question however, of the $3.50 trial be
granted aud costs 10 bde the event But the former
referee is dead the parties apply at Special Term for
the appointment of another IN his place