Opinion
April, 1927.
Judgment reversed upon the law and complaint dismissed, without costs. The appointment of plaintiff as administratrix de bonis non, and the granting of letters of administration to her, are void, the record showing that the prior administrator is living, and that his letters have never been revoked, pursuant to section 136 of the Surrogate's Court Act. We also think that plaintiff's individual rights, and those of other distributees, cannot be determined upon the proof adduced on the present trial. The record also discloses that the referee erred in receiving and excluding evidence material to the proper disposition of the controversy; and further, that his conclusions are not supported by the evidence. The dismissal of the complaint is without prejudice to the rights of the plaintiff, or any other person interested in the estate, to take such further action or proceeding as they may be advised. Kelly, P.J., Manning, Young, Lazansky and Hagarty, JJ., concur. Settle order upon notice, including any necessary reversal of findings and conclusions of the referee.