I am not able to concur with the majority of the court in the conclusion that the order appealed from should be sustained, nor in the reasoning by which that conclusion is reached. The right to the examination provided for by section 2707 et sec[. of the Code of Civil Procedure is purely a statutory one. When a person cited, pursuant to section 2708, interposes a written answer, duly verified, that he is the owner of property or entitled to the possession thereof by virtue of a lien thereon or special property therein, the surrogate must dismiss the proceeding. (§ 2709.) The answer of Baker on the return of the citation issued to Mm fully complies with the requirements of section 2709. He says, respecting all the property mentioned in the petition on which the citation was issued, that he was “ entitled to the possession thereof by virtue of a special property therein arising out of and existing by reason of the fact that he was duly appointed as temporary administrator of the estate of William M. Rice by the court in Texas having jurisdiction to make such appointment on the 28th day of September, 1900, and that he duly qualified by giving a bond and taking the oath on the 29th day of September, 1900, and that the appointment was duly and regularly made in all respects by a court having jurisdiction to make the same.”
Here was interposed by Baker a claim of title to the property-in his possession. The sections of the Code applicable to this matter give no authority to the surrogate to pass upon title. If that be put in issue by a duly verified answer of the person cited, the jurisdiction of the surrogate ends.
The right of the petitioner to maintain this proceeding depends on the single fact that he by reason of his appointment as temporary administrator in the State of Hew York is entitled indisputably to *292the possession of that property — of course, it being shown that it belonged to the estate of the deceased. The petitioner’s right to possession is disputed by Baker’s answer, in which he sets up a title accrued by reason of his appointment as temporary administrator in another jurisdiction. As between two temporary administrators, one appointed in this State and the other in another State, a question as to which has the better title or superior right to possession of the property now in the possession of Baker as administrator is one which the surrogate has no power to determine, either for the purpose of allowing the temporary administrator in New York to make an inventory, or for any other purpose. (Matter of Curry, 25 Hun, 323 ; Matter of Carey, 11 App. Div. 289; Matter of Walker, 136 N. Y. 29.) In the case last cited the court said: “ We-cannot recall any statutory provision which authorizes the surrogate in any proceeding to pass upon the question of title to property as between a claimant and a representative of the testator’s estate. Jurisdiction in all such cases seems to have been scrupulously and intentionally withheld.” In Doyle v. Doyle (15 N. Y. St. Repr. 318) it was held that when an answer is interposed, denying the right of the petitioner to the property referred to in the petition, it becomes the duty of the surrogate to dismiss the proceeding and he “has no power to investigate the verity of the denial thus made.” It is true that section 2707 refers to personal property which should be delivered to a petitioner or included in an inventory or appraisal, but it is evident from the provisions of the following sections that the inventory or appraisal mentioned in section 2707 refers to property with which the executor or administrator is to be charged in this jurisdiction.
When possession is admitted and the assertion is made under oath that that possession is by reason of ownership, or by reason of a lien or special property, the examination cannot be had, because such questions must be determined in another way; and title and the right to possession as dependent upon title, cannot be tried by the surrogate under such an answer as has been interposed by Baker in this matter.
Yaw Brunt, P. J., concurred.
Order affirmed, with ten dollars costs and disbursements.