officer all books and papers in his custody which, within his knowledge or to his belief belong or appertain thereto, such proceedings before such justice or judge shall cease, and such person be discharged. If the person complained against shall not make such oath, and it appears that any such books or papers are withheld by him, such justice or judge shall commit him to the county jail until he delivers such books and papers, or is otherwise discharged according to law. On such commitment, such justice or judge, if required by the complainant, shall also issue his warrant directed to any sheriff or constable, commanding him to search, in the daytime, the places designated therein, for such books and papers, and to bring them before such justice or judge. If any such books and papers are brought before him by virtue of such warrant, he shall determine whether they appertain to such office, and if so shall cause them to be delivered to the complainant. The Union Surety and Guaranty Co. CHAPTER XVIII. SURROGATES' COURTS, AND PROCEEDINGS THEREIN. TITLE I. ORGANIZATION, JURISDICTION, AND POWERS OF ABILITIES OF THE SURROGATE, AND THE PROVISIONS. TITLE II.-PROVISIONS RELATING GENERALLY TO THE PROCEEDINGS IN SURROGATES' COURTS, AND TO APPEALS FROM THOSE COURTS. TITLE III.-GRANTING AND REVOKING PROBATE, LETTERS TESTAMENTARY, AND LETTERS OF ADMINISTRATION. FOREIGN WILLS; ANCILLARY LET TERS. TITLE IV.-PROCEEDINGS BY OR AGAINST AN EXECUTOR OR ADMINISTRATOR, TOUCHING THE AD MINISTRATION AND SETTLEMENT OF THE ES TATE. The Union Surety and Guaranty Ea 1. 2. [Am'd 1895, amendm nt to take effect September 1, 1895.] Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs when all are non-residents thereof, it must be brought in the town where the defendant resides or in any adjoining town thereto. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or ety, in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law, that a partienlar action may be brought before a justice of the town, city, county, or district, where an offence was committed, or where property is found. A defendant designated in section two thousand eight hundred and seventy-nine, section two thou sand eight hundred and eighty, or section two thousand eight hundred and eighty-one of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. 5. [Am'd 1898, amendment to take effect September 1, 1898.] In any town adjoining an incorporated city, no justice of such town shall have jurisdiction of any action brought against a resident of such adjoining city unless the plaintiff in the action is a resident of such town. § 2870. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the following acts: 1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the proceedings, or to impair the respect due to his authority. 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings. 3. Resistance wilfully offered, in his presence, to the ex ecution of his lawful mandate. He has not power to punish, for a criminal contempt, in any other case. § 2871. Punishment for contempt, specified in the last section, may be by fine not exceeding twenty-five dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine, he must be discharged at the expiration of ten days; but where he is also committed for a definite time, the ten days must be computed from the expiration of the definite time. § 2872. A person shall not be punished by a justice of the peace, for a contempt, until an opportunity has been given him to be heard in his defence. And, for that purpose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him. § 2472. Each surrogate must hold, within his county, a court, which has, in addition to the powers conferred apon it, or upon the surrogate, by special provision of law, jurisdiction, as follows: 91 N. Y. 431; 117 Id. 471; 128 Id. 374; 27 Abb. N. C, 477; 137 N. Y. 408, 600 22 App Div. 216. 1. To take the proof of wills; to admit wills to probate; to revoke the probate thereof; and to take and revoke probate of heirship. 2. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a person whose letters have been revoked. 3. To direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees; to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. 4. To enforce the payment of debts and legacies; the distribution of the estates of decedents; and the payment or delivery, by executors, administrators, and testamen. tary trustees, of money or other property in their possession, belonging to the estate. 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. 6. To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. 7. To appoint and remove guardians for infants; to compel the payment and delivery by them of money or other property belonging to their wards; and, in the cases specially prescribed by law, to direct and control their conduct, and settle their accounts. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute. 5 Redf. 32. Id. 574. 4 Month. L. Bul. 32. § 2473. Where the jurisdiction of a surrogate's court 79 Hun, 540. to make, in a case specified in the last section, a decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the surrogate's court. The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree. 129 N.Y. 640. § 2474. The surrogate's court obtains jurisdiction in 127 NY. 296. every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. An objection to a decree or other determination, founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any intermediate proceeding, required by law to be taken, is available only upon appeal. But, for 14 Hun, 106. 129 N. Y. 640 ! Dem. 202. the better protection of any party, or other person interested, the surrogate's court may, in its discretion, allow such defect to be supplied by amendment. § 2475. Jurisdiction, once duly exercised over any matter, by a surrogate's court, excludes the subsequent exercise of jurisdiction by another surrogate's court, over the same matter, and all its incidents, except as otherwise specially prescribed by law. Where a guardian has been duly appointed by, or letters testamentary or of administration have been duly issued from, or any other special proceeding has been duly commenced in, a surrogate's court having jurisdiction, all further proceedings, to be taken in a surrogate's court, with respect to the same estate or matter, must be taken in the same court. 2476. The surrogate's conrt of each county has juris diction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases: 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the State, died within that county, leaving personal property within the State, or leaving personal property which has, since his death, come into the State, and remains unadministered. 3. Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other; or leaving personal property which has, since his death, come into that county, and no other, and remains unadministered. 4. Where the decedent was not. at the time of his death. a resident of the State, and a petition for probate of his will, or for a grant of letters of administration, under subdivision second or third of this section, has not been filed in any surrogate's court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. § 2477. Where personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in subdivision third of the last section. or real property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section; the surrogate's courts of those counties have concurrent jurisdiction, exclusive of every other surrogate's court, to take the proof of the will and grant letters testamentary thereupon, or to grant letters of administration, as the case requires. But where a petition for probate of a will, or for letters of administration, has been duly filed in either of the courts so possessing con after due diligence, be found within the county, so as to deliver a copy of the summons to him; the original sumtions, or the second or third summons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation. $2383. Where it appears, by the return of the constable, to whom a summons has been duly delivered for service, that it was not served, for any cause, a second summons may be issued by the same justice, in the same action, within twenty days after the first summons was issued; and, upon the like return thereof, a third summons may be issued, within twenty days after the second was issuel. The second or the third summons, as the case may be, relates back to the time when the first summons was issued; and, with respect to all proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous suminons may be returned upon the sixth, or any subsequent day, before the return day thereof. § 2884. Where the plaintiff is ignorant of the name, or part of the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted. 2885. A constable, who serves a summons, must, at or before the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand, stating the time when, and the manner in which, he served it. A constable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it. ARTICLE SECOND. $2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff. 2888. Id.; for infant defendant. 2889. When constable, etc, may not act as attorney. § 289). Authority of attorney. 2891. Plaintiff to prove his case. |