Reznor v. Webb

¶1That case, it will be seen by the title, arose between this plaintiff and David J. Webb (who is a brother of the defendant in this action) with others, and was for the foreclosure and collection of a mortgage given by the defendant in that case to the same persons (Sarahette and Cynthia) to whom the defendant in this case was indebted, both actions were tried at the same time, before the same referee, and were similar in character, except that in that case the plaintiff *360sued as administrator of his wife; but it turned out in proof that the- letters were issued by the surrogate of Allegany county, whereas the wife at the time of her death resided and died in Canandaigua, Ontario county, thus by statute giving exclusive jurisdiction of the administration to the surrogate of Ontario. The court (referee) held that the letters. issued by the surrogate of Allegany were void, and for that reason non-suited the plaintiff. The cause was appealed to the general term in the eighth district, and the plaintiff’s counsel there made the point among others, that the plaintiff being owner of the demand as surviving husband, could recover in his individual capacity, and which appears to have been the only point considered by that court.