[30 A.D.2d 1025 Page 1025] Appeal from a judgment in favor of claimant, entered February 10, 1967, upon a decision of the Court of Claims. The State's
objection to the decision appealed from primarily concern the order of certain events leading to that decision and so that
sequence will be briefly reviewed. On October 23, 1962, Charles McBride, an infant, committed suicide while an inmate of the
Warwick State School for Boys. Respondent, the decedent's mother, filed a petition for limited letters of administration in
the Surrogate's Court of New York County on January 8, 1963. This petition was granted by the Surrogate on January 18 by decision
filed on January 22 as follows: "Application for limited letters of administration granted. Submit decree." That same day,
respondent's notice of intention to file this claim was received by the Court of Claims and, on the following day, by the
Attorney-General. Respondent's formal claim was received by the Court of Claims and the Attorney-General on December 5, 1963.
After the commencement of the trial in the Court of Claims on April 11, 1966, it was discovered that no decree had been entered
in the Surrogate's Court proceeding. On April 15, 1966, the same Judge of the Surrogate's Court who had originally granted
the petition signed a decree appointing respondent administratrix nunc pro tunc as of January 22, 1963 and letters of administration
were issued to respondent by the Clerk of the Surrogate's Court nunc pro tunc as of January 22, 1963. Respondent moved, without
objection, in the Court of Claims to incorporate the decree and letters of administration in her claim. The State then made
a motion to dismiss the claim for failure to comply with section 130 of the Decedent Estate Law and subdivision 2 of section
10 of the Court of Claims Act which provide the time within which a wrongful death action must be brought. In a separate memorandum
decision by the Court of Claims on May 23, 1966, the State's motion was denied (50 Misc. 2d 192). Thereafter, on February
1, 1967, the Court of Claims decided in favor of respondent on the merits. The State appeals only on the question of jurisdiction.
No claim of prejudice or surprise has been put forward and the State bases its entire argument on the proposition that the
failure of respondent's counsel to submit a decree in the Surrogate's Court proceedings prevented the Court of Claims from
hearing the controversy as it constituted a jurisdictional defect which could not be corrected nunc pro tunc. However, in
none of the cases cited by the State does the record reflect the granting of the petition for letters of administration prior
[30 A.D.2d 1025 Page 1026]
