Hun.] FIRST DEPARTMENT, JUNE TERM, 1894. It is true that the petition concludes with the prayer for such other and further relief, or both, as to the court should seem just and proper, and the order follows the prayer in the petition and required the administrator to show cause why the petitioner should not have such other and further relief in the premises as should be just and proper. The petition contains no prayer pursuant to section 2685 for a decree revoking the letters, and the order granted thereon does not require the administrator to show cause why the letters should not be revoked. The order required the administrator to show cause according to the prayer of the petition, as required by sections 2685 and 2686, and there is no hint in the petition or in the order that the proceeding was instituted for the purpose of obtaining a decree revoking the letters of administration. A proceeding to vacate letters of administration is authorized by section 2681, and a proceeding to vacate a final accounting is author ized by section 2481, and the reliefs which may be granted under these sections, in proceedings instituted pursuant to them, are not similar. The rule in Chancery was laid down in Colton v. Ross (2 Paige, 396) as follows: "Where the case made by the bill may entitle the complainant to one kind of relief or another, but not to both, the prayer should be in the disjunctive. So if the complainant is in doubt whether the facts of his case entitle him to a specific relief prayed for, or to relief in some other form, his prayer, concluding for general relief, should be in the disjunctive. And in such a case, although he is not entitled to the relief specifically prayed for, he may, under the general prayer, obtain any other specific relief, provided it is consistent with the case made by the bill. (Per THOMPSON, J., 1 Johns. 559; 13 Ves. Jun. 119; 1 Johns. Ch. 117; 2 Young & Jervis, 33; 2 Pet. 595.) But if a complainant prays for particular relief, and other relief in addition thereto, he can have no relief inconsistent with such particular relief, although founded upon the bill." (1 Dan. Ch. Pr. [3d Am. ed.] chap. 6, § 4, pp. 7 and 382, and cases there cited.) In case a petition contains facts entitling the petitioner to two dissimilar kinds of relief, and concludes with a prayer that he have one kind, and for such other and further relief, etc., and the citation issued on the petition HUN-VOL. LXXIX. 48 FIRST DEPARTMENT, JUNE TERM, 1894. ! Vol. 79. follows it with respect to the relief, no relief except that prayed for and such as is consistent therewith can be granted. The practice in courts of equity is peculiarly applicable to a proceeding to vacate letters of administration, because section 2742 provides that the jurisdiction of a Surrogate's Court to vacate letters must be executed in the manner prescribed by statute, and section 2685 provides that the prayer of the petition shall be for a decree revok ing the letters, and section 2636 that a citation must be issued in accordance with the prayer of the petition. Under these proceedings, we think the Surrogate's Court was not authorized to vacate the letters, and that the part of the decree which assumes to grant that relief must be reversed. Had the Surrogate's Court power to open the decree settling the final account without first revoking the letters? Section 2481 of the Code provides: "A surrogate, in court or out of court, as the case requires, has * * * * "6. To open, vacate, modify or set aside, or to enter as of a former time, a decree or order of his court * * for fraud, newly discovered evidence, clerical error or other sufficient cause." The petition and the order to show cause are entirely sufficient to institute a proceeding to vacate the decree entered on the final accounting for "fraud or other sufficient cause." The administrator in his verified petition for the final accounting alleged "That the only person interested in the estate of said decedent * * * as husband, next of kin or otherwise, together with their places of residence, are, to the best of your petitioner's knowledge, information and belief, as follows, to wit: William H. Patterson, the petitioner herein, the husband of deceased, who resides at No. 464 6th ave., New York city." The court found that this allegation was false and that the petitioner was not the husband of the intestate and was not entitled to any share of her estate, and this finding we have affirmed. This was a sufficient cause for vacating the accounting for "fraud * * * or other sufficient cause." But it is urged in behalf of the administrator that because it was alleged in the petition for letters that the intestate and William H. Patterson were husband and wife, and letters were issued thereon to him, the Surrogate's Hun.] FIRST DEPARTMENT, JUNE TERM, 1894. Court is concluded on the final accounting from adjudging that the fact is otherwise and that he was entitled to no part of the estate. This contention we do not think can be maintained. To the end that a citation may be issued as provided by section. 2728, an administrator, in his petition for a judicial settlement of his accounts, is required to state the names of creditors, of the next of kin, and the name of the husband or wife of the intestate. On the hearing "any party may contest the account with respect to a matter affecting his interest in the settlement and distribution of the estate." (2728.) Section 2743 provides: "Where an account is judicially settled, as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. Where the validity of a debt, claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same." * * The appellant, in his petition for letters, alleged that he was the husband of the intestate and her only next of kin, and had the respondent appeared in the Surrogate's Court on the application for letters and contested his right on the ground that he was not the husband of the intestate, she would have been concluded from again litigating the question. (Caujolle v. Ferrié, 13 Wall. 465; Freem. Judg. § 319a.) But this she did not do, and no citation was issued requiring her to appear, and there is no evidence that she had notice of the application, and the question is presented whether, under such circumstances, she is bound by the adjudication made on issuing the letters. If the issue of marriage had been contested, or an opportunity had been given to the respondent to contest the question, the determination of the Surrogate's Court would have been conclusive upon her in a proceeding for distribution, but it is a principle of law too well settled to require the citation of authorities that no person can be deprived of his property without due process of law, and when a court decides a question adversely to the interest of a person who ought to have been a party to the action or pro FIRST DEPARTMENT, JUNE TERM, 1894. [Vol. 79. ceeding, but was not, and is not a privy of a party, the judgment is not conclusive upon such person and he may attack the judgment collaterally. A familiar illustration arises in cases of partition, which are actions quasi in rem. In such a case if a person having a vested interest in the land is not made a party to the action, although it is alleged and proved on the trial that the persons who were parties were the owners of the entire title, the person who was not made a party may prove his title and recover his share of the land as against all the world. So in the case at bar the respondent, not being a party to the proceeding, or the privy of any person who was a party, is not concluded by the letters of administration, but was at liberty, under the sections of the Code and the authorities cited, to contest the question of marriage on the final accounting. (Van Fleet Coll. Attack, § 17.) The rule contended for by the appellant would make it possible for a person not of kin to an intestate, by alleging in a petition for letters that he was the sole next of kin and entitled to administration, to obtain an adjudication that he was so related and thereby estop the true next of kin from questioning his right to the estate collaterally in an action or in a proceeding to compel distribution among those entitled to the estate. It should be observed that in this case it was not asserted on the trial in the Surrogate's Court that the administrator had failed to account for all of the estate, or had in any way misapplied or misappropriated any part of it, except by claiming and receiving the net avails, and every interest will be protected by setting aside the accounting and permitting the surrogate to distribute the estate to those entitled. That part of the decree vacating the letters of administration issued to William II. Patterson March 4, 1889, is reversed, and that part of it vacating the final accounting of March 21, 1890, is affirmed, without costs to either party, and the case is remitted to the Surrogate's Court that final distribution may be had among those entitled to the estate. O'BRIEN and PARKER, JJ., concurred. Decree reversed in so far as it vacates the letters of administration, and affirmed in so far as it vacates the final accounting, without costs to either party; case remitted to Surrogate's Court. Cases DETERMINED IN THE SECOND DEPARTMENT AT GENERAL TERM, June, 1894. CHARLES DE KAY TOWNSEND, Appellant, v. EMMA M. WORK, Neglect to foreclose a mechanic's lien - cancellation of the lis pendens. When the plaintiff, in an action brought for the foreclosure of a mechanic's lien, unreasonably neglects to proceed with his action within the meaning of section 1674 of the Code of Civil Procedure, the owner of the premises therein described, after the dismissal of the complaint, is entitled to an order canceling of record the notice of lis pendens. APPEAL by the plaintiff, Charles De Kay Townsend, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Queens on the 4th day of April, 1894, granting the defendant's motion to have the lis pendens filed by the plaintiff canceled of record. Mortimer S. Brown, for the appellant. Charles Fox, for the respondent. DYKMAN, J.: This is an appeal from an order directing the cancellation of the notice of lis pendens filed in the action. The action is by the assignee of a mechanic's lien to procure the foreclosure thereof. A referee was appointed on the 29th day of November, 1892, to hear and determine the action, and the trial proceeded before him until the 29th day of March, 1893, when the complaint was dis 1 79 3811 144a 643 |