William Welch, Administrator, etc., Respondent, v. The New York Central Railroad Company Appellant

William Welch, Administrator, etc., Respondent, v. The New York Central Railroad Company Appellant. (Argued May 16, 1873; decided May 27, 1873.) Where letters of administration have been granted upon the estate of one dying intestate in the county of the surrogate, the onus is upon one disputing the title and authority of the administrator to show a want of jurisdiction in the surrogate to grant the letters. This was an action brought to recover damages for the death of plaintiff’s intestate, John Welch, alleged to have been occasioned by the negligence of defendant. Defendant questioned plaintiff’s title and authority to sue, upon the ground that the surrogate of Albany county, who granted the letters of administration, had no jurisdiction. Welch, the deceased, was killed while crossing defendant’s track, in the city of Albany, he being struck by a train of cars. The granting of letters of administration to plaintiff was admitted upon the trial, and the production thereof waived. The evidence showed that deceased was a native of Ireland. In 1861, he removed with his parents, brothers and sisters to the Cape of Good Hope, where his father died. He came to Hew York in 1868, with two brothers, one twelve and the other fourteen years of age, leaving his mother and two sisters, for whom he provided at the Cape. He remained in Hew York and Brooklyn for a while. He came to Albany the day before his death. He was a laboring man, unmarried, and had no other home, save where he happened to be boarding. The court, upon the trial, refused to nonsuit plaintiff. Held, no error; that a prima fade jurisdiction in the surrogate was conceded, and & prima facie title in plaintiff established, and the burden of overcoming this prima facie case and of affirmatively showing want of jurisdiction was with defendant; that the evidence was not such as to authorize the court to'decide as matter of law that deceased was an inhabitant of this State; and as no particular amount of assets was necessary to give the surrogate jurisdiction, the evidence came short of proving that he did not leave assets in Albany county. A question of contributory negligence, on the part of the deceased, was also raised; but the court held that, under the evidence, it was a question of fact for the jury. Samuel Hand for the appellant. Henry Smith for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur. Judgment affirmed.