FIRST DEPARTMENT, JUNE TERM, 1902. App. Div.] absolute writ of prohibition against the surrogate upon the theory that if the relator does in the future offer competent evidence it will be rejected, even though his right to introduce testimony has not been waived or lost. There is nothing to justify the inference that the learned surrogate has not acted judicially and with perfect fairness throughout the probate proceedings. His remarks indicate that he thinks it is about time that the hearings on these proceedings should be concluded, but the inference that the surrogate contemplates depriving the relator of any of his legal rights is not warranted. It may be that the surrogate entertains the belief that the relator is responsible for the refusal of the subscribing witnesses to testify. It appears that these witnesses have testified with reference to the execution of this will on the criminal proceedings instituted against the relator. The entire record of these proceedings and of the probate proceedings are not before us, and we cannot say that there is nothing to warrant such an inference. However this may be, the learned surrogate was right in sustaining the privilege claimed by the witnesses. (People ex rel. Morse v. Nussbaum, 55 App. Div. 245; People ex rel. Toy v. Mayer, 71 Hun, 182; People ex rel. Taylor v. Forbes, 143 N. Y. 219.) It is contended by the relator that, inasmuch as the executors of the will of 1896 are all non-residents, if that will is admitted to probate they may remove the property from the State before he is able to establish the validity of the will of 1900. This does not go to the jurisdiction of the surrogate. Moreover, notwithstanding the fact that the will relieves the executors from giving a bond, the surrogate is authorized on account of their non-residence to require security to be given, and there is no reason to apprehend that the rights of the relator will not be properly protected. (Code Civ. Proc. § 2636, 2637, 2638; Estate of Demarest, 1 Civ. Proc. Rep. 302.) If the relator has not lost his rights by failing to introduce his evidence on the objections filed to the probate of the will of 1896, and on his petition for the probate of the will of 1900 at the proper time, he will doubtless be afforded an opportunity to do so. Counsel for the relator is doubtless right in his contention that the relator is entitled on account of his claim as executor of the will of 1900 and as devisee thereunder to contest the validity of the will of FIRST DEPARTMENT, JUNE TERM, 1902. [Vol. 73. 1896 unless he has lost his rights by not doing so at the proper time. (Code Civ. Proc. § 2617.) While he may be unable to establish the validity of the will of 1900 in the manner required by the statute to authorize its probate, it by no means follows that he is not interested in the estate. He may be able to establish the validity of the will by common-law proof which would be accepted in an action in the Supreme Court concerning the ownership of the realty of the testator at least. (Upton v. Bernstein, 76 Hun, 516, 520; Matter of Keleman, 126 N. Y. 79.) It does not fol low, therefore, that because he is unable to have the will of 1900 admitted to probate he is not interested in the estate. But there is no evidence that the surrogate has ruled that the relator is not entitled to contest the first will. We are asked to construe a remark of the learned surrogate that the proponents of the will of 1896 were entitled to a decree admitting it to probate by default as indicating an intention on his part to enter a decree that will recite that the relator has defaulted and thereby preclude him from appealing. The relator has appeared in the proceeding and will be entitled to appeal from any decree that may be entered. Section 2568 of the Code of Civil Procedure relates only to a default in appearing. The learned surrogate evidently meant by default the failure of the relator to produce evidence at the proper time, and the inference is not justified that he contemplates entering a decree reciting that it was made on the relator's default. It is suggested by counsel for relator that, if the writ be refused, it will be taken as an indication that, in the opinion of this court, the surrogate may properly dismiss the proceedings for the probate of the will of 1900 and admit to probate the will of 1896. That would be an unwarranted inference. We refrain from expressing any opinion on questions of evidence, practice, procedure and discretion until they are properly before us by appeal. We merely hold that the surrogate has jurisdiction and is not proceeding in excess of his jurisdiction in a manner to justify issuing an absolute writ of prohibition. The alternative writ was, therefore, properly quashed and dismissed and an absolute writ properly denied. The order should be affirmed, with fifty dollars costs and disbursements, and the surro App. Div.] FIRST DEPARTMENT, JUNE TERM, 1902. gate and respondent are authorized to proceed in the matter of probating said wills as if the alternative writ had not been issued. PATTERSON, INGRAHAM, MCLAUGHLIN and HATCH, JJ., concurred. INGRAHAM, J. (Concurring): I fully concur in the opinion of Mr. Justice LAUGHLIN and simply wish to add that, in my opinion, the provision in the order appealed from that the stay of proceedings contained in the alternative writ of prohibition be continued pending an appeal to the Appellate Division of this court from the final order in this proceeding is entirely unauthorized. A writ of prohibition prohibits a court from proceeding in a matter then before it. The only authority that the Supreme Court has to restrain a court from so proceeding is by a writ of prohibition. The court below granted an alternative writ, but, upon a return being filed, it refused to grant an absolute writ. The order refusing the absolute writ was a final order under section 2100 of the Code of Civil Procedure, which provides that "where a final order is made against the relator it must authorize the court or judge and the adverse party to proceed in the action, special proceeding or matter as if the alternative writ had not been issued." Neither the Code nor the practice authorizes the Special Term, when a final order refusing an absolute writ is entered, to prohibit a court from proceeding by order, either pending an appeal from the order refusing the absolute writ or for any other period of time. The Special Term was required by the provisions of the Code applicable to a writ of prohibition, upon the return being filed, to determine whether or not an absolute writ of prohibition should issue. Upon its determination that such an absolute writ should not issue, the final order abrogates the alternative writ, and the prohibition contained in that writ is at an end. The Supreme Court was then without jurisdiction to continue the prohibition contained in the alternative writ by order. I think it necessary to make this statement to avoid the implication that the practice adopted by the Special Term is in any sense approved. PATTERSON, MCLAUGHLIN, HATCH and LAUGHLIN, JJ., concurred. Order affirmed, with fifty dollars costs and disbursements. FIRST DEPARTMENT, JUNE TERM, 1902. [Vol. 73. SARAH A. FROUNFELKER, as Widow of JOHN FROUNfelker, Deceased, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant. Action to recover damages, under the Pennsylvania statute, for a husband's death interest on the verdict cannot be added by the clerk. Where an action to recover damages resulting from the death of the plaintiff's husband is brought in the State of New York under a statute of the State of Pennsylvania, and upon the trial of the action it appears that the Pennsylvania statute does not contain any express provision relating to interest upon the verdict, and that in that State it is discretionary with the jury whether or not to include interest in their verdicts, the clerk of the court has no power to add interest to the amount of the verdict and include it in the judgment in accordance with the practice prescribed by section 1904 of the Code of Civil Procedure. APPEAL by the defendant, The Delaware, Lackawanna and Western Railroad Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 7th day of February, 1902, and entered in the office of the clerk of the county of New York, denying the defendant's motion to modify a judgment in favor of the plaintiff, entered in said clerk's office on the 17th day of January, 1902, upon the verdict of a jury, by striking therefrom the item of $5,553.33, the interest on the verdict from the date of its rendition to the date of the entry of the judgment. Hammond Odell, for the appellant. Thomas P. Wickes, for the respondent. LAUGHLIN, J.: The plaintiff's cause of action to recover for the death of John Frounfelker was given by the statute of the State of Pennsylvania, but the action was brought in the courts of this State. The Pennsylvania statute does not contain any express provision relating to interest, but it appears by affidavits that the courts permit juries, in their discretion, to include interest in their verdicts. In this case it does not appear whether or not the court so instructed the jury, nor does it appear whether the jury added interest by way of damages, but after the verdict the clerk, following the practice prescribed by App. Div.] section 1904 of the Code of Civil Procedure, which relates solely to causes of action arising under the statute of our State, added this interest and included it in the judgment. This, we think, was error. The plaintiff having elected to bring her action in our courts, the course of procedure prescribed by the practice of the courts of the lex fori is of course to govern; but her right of recovery, whether of damages or interest, rests exclusively upon the statutory law of the foreign jurisdiction. (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28; affd., 153 N. Y. 688.) The right to recover interest in such cases, where the cause of action arises under the laws of this State, rests upon the express provisions of our statute, whereas in Pennsylvania no such right is expressly conferred. Under the practice in Pennsylvania, as indicated by the affidavits presented, it would appear that it is discretionary with the jury whether to allow interest or not. The plaintiff, therefore, seeks by proceeding under section 1904 of our Code of Civil Procedure, to evade the hazard incident to that discretion and to claim as a matter of right what she could not claim as a matter of right had she brought her action in the courts of Pennsylvania. At common law it was required that the judgment entered on a verdict should conform strictly to the verdict. As has been seen, the statute of Pennsylvania, with respect to the amount of damages, only authorizes entry of a judgment for the amount of the verdict. The case clearly falls within the principle of the Kiefer case, and the addition of interest by the clerk was unauthorized. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. PATTERSON and HATCH, JJ., concurred; O'BRIEN, J., dissented. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. |