Cornell University Law Library, THE QIFT OF r?^.<=S- \>n^.^.-ilr«/.....^..r../.!^.^..<>.. 9181 v ^"' ^)^^ cornel. University Library KFN5205.N75 • „„ the oractice in,,&,3miia A treatise on MWft .niumniiiiiiMiiMin -:<:>> ^A Co »1 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022809804 A TREATISE n The Practice In THE SURROGATES' COURTS t THE STATE OF NEW YORK PART I : GENERAL PROCEDURE By WILLIAM NELSON NOBLE Of The Tompkins County Bar Ithaca N.Y. 1910 -O. I'^lal'^D '^ W^^^f TABLE OF C N T E II T 3 Chapter 1. THE BURROaATE AND KIS OFFICE . «"!;: Page Sec. 1 Preliminary ' /' ' 1 2 The Surrogate under -the Consti- tutions of 1846 and 1894 ... 5 3 Official Oath and Bond ... 7 4 Certificate of Age .... 7 5 Removal of Surrogate .... 8 6 Vacancy in Office: Hott filled . 8 7. Compensation of Surrogate: Fees 8 8. General Disqualifications of ourrogate 9 9 Other D'isqualff Scat ions and Dis- abilities 11 10 Special Disqualifications . . 12 11 Waiver of Disqualifications . . 13 -12 Surrogate's Official Designation 13 13 Surrogate a Local Officer . . 14 14 '^hen Surrogate to Attend at his office 14 15 Surrogate's Office .... 15 16. Clerks for Surrogate's Office 15 17 Books to be kept by Surrogate . 16 18 Book Relating to Taxable Trans^ fers 17 19 Bound Volumes of Testimony . ' 17 20 Papers and Books to be Preserved and BondsFiled 17 21 General Charge of Books and Records 18 22 Searches and Transcripts of Records: Fees therefor . . 18 23. Surrogate to Report ^ess and Transmit Certain Papers . . 19 GHAPTi:;!^ II. OF PROVISIONAL SURROGATES. Sec. 24 Local Officers: Special Surrogate 21 25. Temporary Surrogate .... 23 26 Form! Appointment of Temporary Surrogate 24 27 Notice of Application to Revoke 25 28 Form: Order of Revocation . . 25 29 What Provisional Surrogate may Act, and When 26 30 Of the Special Surrogate . ■ . 27 31 What Proof of Authority Required 28 32 Same Subject: Order, how made . 29 33 Forms: Petition for Proof of Authority 30 34 Notice of Application: Discre- tion of Justice 32 35 Forms: Order Establishing Authority 32 36 How Order is Revoked .... 35 37 Notice of Application to Revoke 35 38 Form: Order of Revocation . , 36 39 Disqualification as to a particu- lat matter 37 40 Form: Surrogate's Certificate of Disqualification .... 37 41 Disqualification Established by Order 38 42 Form: Order Establishin^n- Dis- qualification 39 43 Provisions Relating to the County of New York .... 40 44 Proof of Authority in the County of Ne-.v York ... .40 45 Provision as to Kir^ s County . 40 46 "Proceedings transferred to Su- preme Court: How Regulated . 41 47 Proceedings Returned to Surro- gate's Court 41 48 Official Designation of Provis- ional Surrogate 42 S#c.49 Compensation of Provisional Surrogate 43 50 Records to be kapt by Provision- al Surrogate 43 51 General Authority of Provisional Surrogate 43 CHAPTER III THE SURROGATE'S COURT Sec. 52 Surrogate's Court: ^hen Open and ^here Held 45 53 Same Subject: Iji New York county 46 54 Seal of Surrogate's Court . . 46 55 Clerk of Surrogate's Court: Deputy 47 56 Same Subject: Powers of Clerk . 47 57 Stenographers and other Officers for Surrogate's Oourt ... 49 58 Qualifications and Duties of Stenographers 50 59 Fees of Stenographer .... 52 60 Testimony: How Authenticated and Preserved 53 61 An Attorney is Officer of the Court _. _._ ....... 53 CHAPTER 17 JURISDIHTION OP THE COURT. Sec. 62 Distinction between the Surro- gate and the Rurrogate's Court 55 63 Of the Surrogate's Court . . 56 64 Jurisdiction: How Obtained r . 57 65 General Jurisdiction ... 58 66 Limited Jurisdiction ... 58 67 Limited Jurisdiction: ITo Equity Powers 59 Sec, 68 Same Subject : Illustrative Oases 62 69 Limited Jurisdiction: Implied Authority 63 70 Bame Bub j act: Illustrative Cases 66 71 Same Subject: Authority to As- certain ^farriage Relation . . 67 73 Incidental Po'vers of the Sur- rogate 68 73 Surrogate's Power to Enjoin Executor, etc 69 74 Surrogate's Power to Require Executor, etc., to Perform Statutory Duty 70 75 Vacating Orders and Decrees, etc .: Granting new Trials ... 70 76 Decree without Jurisdiction, Va$ cated by Order 73 77 Power to Punish for Contempt . 74 78 Power of Surrogate to Complete Unfinished Business of Prede- ceasor 75 79 Common Law Jurisdiction and In- cidental Powers 76 80 Exclusive Jurisdiction with Re- spect to Decedents' Estates . 77 81 Residence Equivalent to Domi- cile 78 82 Jurisdiction: '''hen Determined by Location of Property ... 80 83 Concurrent Jurisdiction: ^'hen it becomes Exclusive .... 83 84 Personal ^^roperty: Assets . . 83 85 Jurisdiction Affected by Local- ity of Debts 84 86 Jurisdiction in Hew or Altered County 85 87 Presumption of Jurisdiction . 85 88 Same Subject: Rule of Evidence 86 89 Jurisdiction not Lost by' Defect in Record: Amendments ... 87 90 ?5Iuestion of Jurisdiction to be determined by surrogate . . 87 Sec. 91 Writ of Prohibition against Surrogate's Court ?'and.anus . 88 THE CITATION AND ITS SERVICE Sec. 92 Character of Proceedinc^s in Sur- rogate's Court 90 93 Special Proceedinr-; Commenced by Citation ....... 91 94 Proceeding;: Then Commenced by- Petition 92 95 Of the Citation 93 96 Subject-Natter of the Citation 94 97 Persons to be Cited . . . .94 98 Citation to Unknown Persons Con- stituting, a Glass :How Directed 95 99 Forms: Citation. Subpoena upon Inquiry 96 100 Personal Service of Citation upon Adult '^/Ithintha State . 98 101 Personal Service o-f Citation upon Infant within the State . 99 102 Form. Order requ-^'ring Additional Service in case of infant . 101 103 Personal Service of Citation upon Incompetent Person . . 101 104 Form: Order requiring Addition- al Service in case of incom- petent 102 105 Personal Service upon Lunatic: When Dispensed 'vith . . . 103 106 Form: Affidavit to Procure Or-Q der dispensing ^vith Service upon Lunatic 103 107 Form: Order dispensing :7ith Ser- vice upon Lunatic .... 104 108 Substitute for Personal Service upon a .-Resident .... 105 , 109 Form: Affidavit to Procure Order for Substituted Service . . 106 Sec, 110 FormrOrder for Substituted service 106 111 Personal Service of Citation upon a Corporation . . . 107 112 Service of Citation by Publi- cation 108 113 same Subject: Application for Order 108 114 Order for Service by Publica- tion: '^hen and how Made . .109 115 Form: Order for Service out of State, or by Publication . Ill 116 Order: How Executed . . . 113 117 Service of Petition with Sita- tion: When •nequired . . . 114 118 Time whan Citation must be Servad 114 119 Service of Citation: By Whom Made 116 120 Brief of Service .... 116 121 Form: Proof of Service . . 117 122 ¥aiver of Citation .... 119 103 Form: Waiver of Citation . . 121 124 Supplairontal Citation: Form . 122 125 The Return of a Citation . . 123 126 JTHAPTER VI. PARTIES AND APPEARANCES Sec. 126 AppearancSe of Party and Ef- fect thereof 125 127 Appearance by Attorney . . .126 128 Special Appearance .... 128 129 Form: Notice of Appearance by Attorney 128 130 Appearance of Infant or incom- petent person 129 131" Special Guardian: when to be Appointed 129 Seo.132 Rame Subject: Who may be Ap- pointed 130 ' 133 Same Subject: How Appointed . 131 134 Same Subject: General Ob- servations 132 135 Special Guardian for Infant Petitioner 134 136 Special Rules of Surrogate's Court in New York Obunty . . 135 137 Porm: ilonsent of Speciai Guardian 136 138 Form: Order Appointing r.pec- ial Guardian 137 139 Duty of Special Guardian . 137 140 Termination of Special Guar- dianship J38 141 Compensation of Special Guardian 138 142 Intervention of Parties . . 140 143 Form: Petition for Interventionl42 144 Form: Order Allowing Inter- vention 142 145 New Parties by Order or by Supptemental Citation . . 143 146 Form: Petite" on for Supplemental Citation 144 147 Form: Order for Supplenental Citation 145 148 Substitution of Parties . . 145 149 Same Subject: Proceeding in Pveml46 150 Porm: Petition to Substitute Party Respondent .... 147 151 Form: Order Substituting Party Respondent 148 152 Necessary Parties: How Desig- nated 149 153 Heirs and Ilext of Kin . . 150 1§4 Devisees and Legatees . . 151 155 Husband or Wife .... 152 156 Creditors 153 157 Assignees of Legatees, Next of Kin, etc 154 158 Executors and Administrators . 156. CHAPTER VII. OF THE PLEADINGf?. Page SeG.159 Pleadings in Surrogate's Sourt 158 160 Written Pleadings: ''Jhan Re- quired 159 161 Verification of Pleading . . 159 162 Affidavit of Verification . 159 163 Verification: How and by Whom Made , 160 164 When Pleading must be Verified 161 165 Allegations and Denials in Ver- if:!ed Pleading .... 162 166 Form: Verification by Party or Attorney 162 167 Service of Pleadin.rrs . . . J63 168 The Petition 163 169 The Answer 165 170 Objections to an Executor . . 165 171 Objections to an Account . . 166 CHAPTER VIII. MISCELLANEOUS PRACTICE REGULATIONS nec.172 Preliminary 169 173 Soma statutory Provisions . 170 174 Uistakes, Omissions and Irreg- ularities 172 175 Amendments by the '^^ourt: Im.- naterial Errors, etc. . . 173 176 Relief against Omissions . . 174 177 Returns by Officers ... 175 178 Papers Lost or 'Withheld: Record or Paper, how Altered . . 175 179 Defects in Affidavits and Bondsl75 180 Service of Papers .... 176 181 Jv^ode of Service .... 176 182 Double Time when Served throu'-h Post-office 178 Sec. 183 Service on Attorney: Whan not Required 178 184 Service on Clerk or Surrogate for Party 179 185 Service in New York City . . 179 186 "Requirements as to Papers for Service or Filin^ . . . 180 187 Form: Affidavit of Service on Attorney 180 188 Form: Affidav:it of Service on Party 181 189 Form: Affidavit of Service on Clerk of Court .... 182 CHAPTER IX. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. Sec. 190 191 19S 193 194 195 196 197 198 199 300 201 202 203 204 205 206 Rules of Evidence .... 184 Witnesses: Court may Compel Attendance 185 Of the Subpoena .... 185 Subpoena for .Hearing before Referee 186 Subpoena Duces Tecum . . . 187 Form: Subpoena 188 Service of Subpoena: Penalty for Disobedience .... 188 Proof of Service .... 190 Form: Affidavit of Service . 190 FOrm: Affidavit for Attachment against 'Witness .... 191 Form: Order for Attachment. . 191 Form: Attachment .... 192 Habeas Corpus to Testify . . 193 Form: Affidavit for Habeas Corpus to Testify .... 193 Form: Eahreas Corpus to Testify 194 Depositions Taken within the State 195 Testimony of Aged, Sick or Infirm 'Witness .... 196 Bea, 207. Same Subject: Witness in anothar County 197 208 Forms: Affidavit and Order for Examination of Witness by Surrogate 200 209 Form: Order for Examination of Witness by Surrogate of An- other County 201 210 Forin; Notice of Exanination . 201 211 "Return of Examination Taken by Surrogate of Another County . 202 212 Form: Return of Examination . 203 213 Form: Affidavit for Examination of Witness before Referee , 204 214 Form: Order for Examination of Witness before Referee . . 205 215 Deposition by Consent of parties 205 216 Form: Stipulation to Take Deposition • 206 217 Depositions taken Outside the State 206 218 Commission with Interrogatories207 219 Commission to Examine upon Oral Questions 209 220 open Commission 210 221 Letters Rogatory .... 211 222 Ooram.issions Generally :Erocedure212 223 Same Subject: Depositions . 213 224 Same Subject: Deposition, how taken ....... 214 225 Same Subject: Execution and Re- turn of commission or Order to take Depositions .... 214 226 Sam.e Subject: Certificate of Execution 215 227 Same Subject: Procedure after Return 216 328 Interrogatories and Deposition in Foreign Language . . . 217 229 Form: Affidavit for Commission 218 230 Horm: Notice of Application for Commission 219 Pag.; Sec. 231 Form: Order for Comminsion . 220 232 Form: Commission . . . . 221 233 Service and Settlement of In- terrogatories 222 234 Form: Interrogatories to Annex to Commission .... 223 235 Form: Notice for r.ettleraant of Interrogatories .... 224 236 Form: Hot ice of Examination upon Oral questions . . . 224 237 Form: Stipulation for Comriis^ 3 ion '='25 238 Form: Letters Rogatory . . 226 239 Discovery of Books ana Papers 226 240 Discovery: Wlien Compelled . 227 241 Petition for Discovery . . 228 242 Order to Si^ow Cause . , . 229 243 Order for Discovery . . . 229 244 Form: Petition for Discovery .230 245 Form: Order to Ri-ow Cause why Discovery should not be Allowed 231 246 Form: Order alloiring Discovery or Inspection 23S 247 Witness Incompetent: Personal Transactions -n'th Decedent . 233 248 Same Subject: Of the Disquali- fying Interest .... 235 249 Same Subject: Release of In- terest 237 250 Form: Release of Legacy . . 239 CHAPTER X. TIIE TRIAL OP ISSUES Sec. 251 Hearings before the Surrogate 241 252 Sane Subject: Statutory Pro- visions 242 253 Same Subject: Exceptions, Ho-r taken 243 254 Decision of Surrogate . . . 245 f5sc.255 Requests to Find and Exceptions 246 256 Same Subject: Surmary of Prac- tice 248 257 Reference: In ^-rhat Oases . . 249 258 Reference to Take and i^eport^ Evidence ^ . 250 259 Reference to Hear and Determine upon an Accounting; . . . 252 260 General po'vers of Referee . 253 261 1|ualifications of Referee in Surrogate's Court: Wunber . 253 263 Referee to be Sworn . . . 255 263 Witnesses may be Subpoenaed to Attend before a Refereo . 255 264 General po-^fars of Referee . 255 265 Referee's Report; ^h,3n to be Made: Consequence o'f Failure 256 266 Requests to find on Trial be- fore a Referee .... 257 26 7 Same Subject: Present Rule . 260 268 Report where Account has been Referred to Hear and Detenaine 262 269 Evidence Taken by Referee: When Filed 7/ith Report . . 264 270 Compensation of Referee . . 266 271 Same Subject: Collection of Fees 267 272 Exceptions to Report . . . 268 275 Surrogate's Action on Report of Referee to take Evidence . 269 274 Surrogate's Action on Report of Referee to Hear and De- j?0]fmin3 270 275 Sane Subject: Within what Time 273 276 Reference in Hew York County 273 277 Form: Order of Reference to Take Evidence 274 278 Form: Order for Reference to Exarn.ind Account, etc. . . 275 279 Trial by Jury 276 CHAPTER XI. COlICERNIiiG- COSTS Sec. 280 Difference between Costs and "Allowances " 278 281 General Codd provisions not Applicable 279 282 Costs: When and how Awarded, and How payable .... 280 283 'Than Awarded as of Hight . .281 284 The Discretion of the Surrogate 282 285 Same Subject: Costs against Executor, etc. , Personally . 283 286 Same Subject: Costs against other parties personally . 285 287 Costs payable out of Estate to Unsuccessful Part^?": Probate Cases 287 288 Unsuccessful Contest on Ad- counting 288 289 Amount of Costs 289 290 Costs to Special Guardian. . 292 291 DisbursesBants 292 292 Costs upon a Motion . . . .293 293 Costs are awarded to parties .294 294 Costs to be Fixed by the Sur- rogate 295 295 No Imprisonment for Non-Pay- ment of Costs 296 296 Costs upon Appeal .... 297 297 Form: Bill of Costs and 'Notice of Taxation 299 298 Costs against Executors or Ad- ministrators: WhenAWarded in an Action 302 CHAPTER XII. DECREES AT:d ORDERH. Page Sec. 299 Definitions and Distinctions 306 300 Same Subject : Special proceed- ing 307 301 Surrogate's Decree: Collateral Attack 308 302 Same Subject: Some Statutory Provisions 309 303 Decrees and Orlers: Ho-r Signed 310 304 Form of Order or Decree . . 311 305 Orders and Decrees to be Re- corded 312 306 Same Subject: Decree Settling ■'■ an Account 313 307 Decree or Order: Evidence of Assets 313 308 Decree Directing Payment of Money 314 309 Same Subject: Ho^v Enforced by Execution: When by Action . 315 310 Same Subject: Leav^ to Issue Execution: When Satisfietion of Decree Presumed .... 317 311 Supplementary Proceedings . 318 312 Form: Transcript of Decree for Docket in Count v Clark's Office ....... 329 313 Form: Execution on Decree Docketed 320 314 Form: Affidavit for Leave to issue Execution after Five Years 321 315 Form: Order to 5ho'7 Cause . 322 316 Form: Order for Leave to Issue Execution after Five Years . 323 317 Enforcement of Decree by Con- tempt Proceedings .... 324 318 Contempt Proceedings Generally 325 Page Gee. 319 Contempt proceedings against Executor or Administrator for Debt to Decedent .... 325 320 Decree for Costs not Ilnforce- ablse by Contenpt proceedings 328 321 Execution to precede Contempt proceedings 328 322 Practice in Conteinpt proceed- ings 329 323 Same Subject: Order to SJ^ow Cause or '^arrant to Attach Offender 330 324 Form: Affilavits for Order to 51io'.7 Cause 332 325 Same Subject: Order to S^^ow Cause 334 526 Form: Order to G:.ow Cause . .335 327 Same Subject: Service of Order to Show Ca^ise 336 328 Same Subject: Return of Order to Show Cause 537 329 Same Subject: Proceedings upon return of Order 338 330 Form: Order Punishing for nonte-.:pt 341 331 Conte''-'pt tDroceodi ngs under a '7arra-t of Attachnant . . 343 332 ^he?-; Court ma^r nalease Tmpris- oned Delinquent .... 347 333 Appeal: Stay of proceedings Theraon v548 334 Enforcement of Decree by Action on Official Bond .... 349 335 intermediate Order: How En- fofced 351 336 Same Subject: Order Enforced by Contempt Proceedings . . 352 337 Authority of Surrogate's Court over its Decrees and Orders 353 338 Same Subject: Limitation upon Surrogate's Powers: ITone as. to Time 354 339 same Subject: Unauthorized Order or Decree .... 354 Page r!ac.340 Same 'Rubriect :Who may Spply to Open Decree 355 341 ■Proceedings to Open Decree or Order 356 342 Enforcemant of Decreo by Crim- inal proceedings .... 357 CHAPTER XIII APPEALS. Sec. 343 Preliminary 360 344 Appeal to Appellate Division of Supreme Court .... 361 . 345 An Order must Affect a "Sub- stantia,! Right" to be Appeal- able 362 346 Same Subject: Some Tlon-appeal- able orders 363 347 Ex Parte Orders not Appealable 364 348 Discretionary Orders: When Ap-^ pealable 364 349 IvC Appeal from Decision . , 365 350 Intermediate o^'d.er may be Re- viewed without Separate Appeal366 351 Only Party A^^^isved may Appeal 367 352 When Person not a Part3^ ^^7 ffppeal . . . . ." . . 368 353 Death of Party before Appeal 370 354 Special Guardian for Infant party may Appeal .... 370 355 When Appeal from Decree T^ro- bating a 'Till should not be Taken 371 356 Parties to Appeal: Brin^in^ in Parties ....". 371 357- Appeal v/here Adverse Partv has died 373 358 Designation of Parties to Ap- peal: Title of Cause . . . 374 Pas a r,ac.359 Tima -vithin which Appeal may be Taken 374 350 Form: ITotica or Entry of Order or Decree to Limit Time for Appeal 377 361 Appeal; ITo'7 Taken .... 377 362 Substituted Service of notice of Appeal 379 363 Form: lIoti<5e of Appeal . . 380 364 Form: Affidavit by Person, not a Party, who Appeals . . . 381 365 Security to Perfect Appeal . 382 366 No Stay whatever in Certain Oases 383 307 When issuanie of Letters is not Stayed 384 368 Security for Stay There Decree is for Honey or other Proparty385 369 Security for Stay in Contempt Proceedinrfs ..... 386 370 Amount of Undertaking . . . 387 371 Requisites and Effect of under- taking: Action thoreon . . 388 372 Form: Undertaking to Perfect Appeal 390 373 Form: Undertaking to Stay Exe- cution of Decree .... 391 374 Form: Undertaking for Stay in case of Coramitmont . . . 392 375 Deposit in lien of Undertaking 392 376 Security may be Waived . . 393 377 Ne-T Undertaking to be given Than Sureties are insolvent . 393 378 Action on Undertaking . . 394 379 Proceedings -.^hare Party Dies pending Sppeal .... 395 380 Order of Substitution . . 396 381 Certain Defects may be Re^iadied396 382 When Appeal perfected and Pro- ceedings Stayed .... 397 383 Certain Oeneral Provisions of the Code made Applicable . 398 384 ApTDeal may be or; the Law or the Pacts 398 Page Sec. 385 Appeal from Decree upon Ques- tions of La-/ 398 38G Appeal from Decree upon Ques- tions o: Fact 399 387 When Appeal r^jst be Il^ai-'l upon a Case nettled by Surrogate .400 388 "aking and T.e^ttling a Case . 400 389 Extension ol Time by Orlar . 402 390 Certif-'cate on Settlement of Case 402 391 Appeal without a Case: Ti:at C Quest'ion may be TRaised Ther3by404 392 Record '"fr.exe Pefererce is had 4>"4 303 Recori upon Appeal from Order 406 394 Papers to be Transmitted to Appellate Divis:!on . . . 407 395 Powers of Appellate Division on Appeal Tfipon Facts .... 408 396 Other Specified Pov^ers of Appel- late Divis:i"on on Appeal- . . 411 397 Judgi.ient or Order upon Appeal 412 308 Jury Trial upon Reversal in P©obate Cases 413 399 Proce3din,;;;s upon Decision by Appellate Division . . . 417 400 Proceedin'^s -vhen Appellate court Awards Jury Trial . . 419 401 Form: Order of Surrogate on Remittitur of Appellate Court Direct ""n.'^ Jury Trial . . . 422 402 Proceedings upon Verdict of the Jury 423 403 Review of Jury Trial: Motion for VQ-r Trial 424 404 Same Subject: In Probate Case 426 405 Disregarding Errors on ''otion for lie?; Trial 427 406 notion on Judge's irinutes: How Made 428 407 Motion on Trinute.-i: If not En- terta-'ned by Trial J-Jige . . 429 408 Appeal from Order Granting or Refusing Hew Trial . . . 408 Sec. 409 Motion for Ke'7 Trial in NaT York County 430 410 Costs of Aprvjal .... 431 411 Same r.ubjjct: On Jury Trial in Probata Case .... 431 412 Sama nubjoct: /vmount of Costs 432 413 Appeals to Court of Arr^als . 432 414 Same Subject: Certain Orders not ■Revia'vable .... 434 415 Proceeding's on Kemittitur from f^ourt of Appeals . . . 436 416 Enforceriient of Decree or Or- der Appealed fror.:: Res- titution 437 CHAPTER I. THE SURROGATE AND HIS OFFICE. Section 1. Preliminary. 2. The Surrogate under the Constitutions of 1846 and 1894, 13. Official Oath and Bond. 4. Certificate of Age. 5. Removal of Surrogate. 6. Vacancy in Office: How filled. 7. Compensation of Surrogate: Fees. 8. General Disqualifications of Surrogate. 9. Other Disqualifications and Disabilities. 10. Special Disqualifications. 11. Waiver of Disqualifications. 12. Surrogate's Official Designation. 13. Surrogate a Local Officer. 14. When Surrogate to Attend at his OflSce. 15. Surrogate's Office. 16. Clerks for Surrogate's Office. 17. Books to be kept by Surrogate. 18. Books relating to Taxable Transfers.- 19. Boun(J . volumes of Testimony. Zi). Papers and Books to be Preserved and Bonds Filed. 21. General Charge of Books and Records. 22. Searches and Transcripts of Records: Fees therefor. 23. Surrogate to Report Fees and Transmit Certain Papers. Section i. Preliminary. The Surrogate's Court is a peculiar one whose jurisdiction is limited almost entirely to matters connected with the devolution and administration of the estates of decedents and infants — related matters inasmuch as generally the property of an infant comes to him by will or inheritance. The story of its origin and development tip to 1862 has been told by the late Judge Chaeles p. Daly in that famous opinion (see £rick's TTstaie, 15 Abb. Pr.'.12)— remarkable for its painstaking and abundant learning— which 'haiS furnished material for mahy a subsequent opiijjon, upon th^ Surrogate's Court ; and in Matter of Thompson I PART I ; GENERAL PROCEDURE. Ch. 1, § 1. Preliminary. (184 JV. T. 36) Judge Vaxx, writing for the Court of Appeals, has given this outline sketch of its powers : A surrogate, meaning literally a substitute, or one who acts for another, from the earliest times has been an officer of limited jurisdiction. Originally in England he was the bishop's chancellor, and presided for him in the diocesan court. In colonial times he was the delegate or substitute of the Governor, and acting for him ad- mitted wills to probate. Shortly after the Revolution statutes were passed which cautiously extended his powers by bringing other subjects within his jurisdic- tion. The Revised Statutes defined and to some extent enlarged his powers, but care was taken to prevent him, "under pretense of incidental powers or constructive authority," from exercising " any jurisdiction whatever not expressly given by some statute of the State." (Matter of Brick's Estate, 15 Abh. Pr. 12, 15.) In 1837 this severe restriction was repealed, and it was held that the effect was to restore the incidental powers possessed by Surrogates' Courts previous to the Revised Statutes. {Sipperly v. Baucus, '2,4^ JST. Y. 46.) By the Judiciary Act of 1847 and by various other statutes, changes were made and defects corrected, but still the jurisdiction of the surrogate was not advanced to any remarkable degree, although his court was finally made a court of record. New subjects were added to his jurisdiction but general powers were carefully with- held from him. Even the codification which went into effect on the first of September, 1880, left the powers of Surrogates' Courts substantially where it found them. The codifi- cation, as amended from time to time, still governs the subject and is that part of the Code of Civil Procedure known as Chapter 18, embracing sections 2472 to 2860, inclusive. . The general jurisdiction of the surrogate and his court appears in section 2472 by which, among other things, he is authorized to direct and control the conduct and settle the accounts of executors ; to enforce the distri- bution of the estates of decedents" and the payment or delivery by executors of money (3r other property in their possession belonging to the estate and to administer justice in- all matters relating to the affairs of decedents according t& tlie provisions of the' statutes relating thereto. Ch. 1, § 1. THE SURROGATE AND HIS OFFICE. 3 Preliminary. By section 2481 certain incidental powers relating to procedure are conferred upon the surrogate. With respect to any matter not expressly provided for in that section he is authorized thereby to proceed in all matters subject to the cognizance of his court, according to the course and practice of a court having by the common law jurisdiction of such matters except as otherwise prescribed by statute, and to exercise such incidental powers as are necessary to carry into effect powers expressly conferred. But this is a work on practice, only. Its subject-matter is the pi-ocedure in the Surrogate's Court as regulated by Chapter 18 of the Code (§§ 2472-2860), entitled " Surrogates' Courts and Proceedings Therein," and as developed by the rulings of the courts ; while the substantive law, governing the devolution of de- cedents' estates and their administration, is beyond its scope except the little that seems needful to an intelligent presentation of the matters of practice, together with so much of it as may be found in Chapter 18. Somewhere or other in this treatise every Code section contained in that chapter has been set out in full albeit many of those sections are substantive law and have no rightful place in a Code of Civil Procedure. Less than a dozen sections of this sort have been removed to the Consolidated Stat- utes ; but the Legislature might have gone fartlier, and, to ad- vantage, also, transferred many sections .relating to the Surrogate's Court and its organization, its clerks, stenographers, books bf, Jecord and other kindred matters, which properly belong td the Judiciary Law, as well as some other sections relating to wills and the duties of executors and administrators, which properly belong to the Decedent Estate Law. But Chapter 18 has been left intact practically ; and in its entirety is presented or discussed in the following pages. In Code section 2514 the Legislature has expressly defined many words and phrases employed in Chapter 18 ; and when any of them are feed in this treatise it is with the statutory meaning. § 2514. Definition of Expkessions Used in this Chapter. — In con- struing the provisions of this- chapter, the following rules must be observed, except where a confi-ary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof v.- 1. The word, " intestate ", signifies a person who died without leaving a valid will ; hut where it is used with respect to particular property, if signifies a person who died without effectually disposing of that property by will, whether he left a will or not. 4 PART I : GENERAL PROCEDURE. Ch. 1. §1. Preliminary. 2. The word, "assets", signifies personal property applicable to the pay- ment of the debts of a decedent. 3. The word " debts " includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered In an action ; and the word " creditor " includes every person having such a claim or demand, any person having a claim for expense of administra- tion, or any person having a claim for funeral expenses. (Am'd 1900 ch. 120.) 4. The word, " will ", signifies a last will and testament, and includes all the codicils to a will, 5. The expression, " letters of administration ", Includes letters of temporary administration. 6. The expression, " testamentary trustee ", includes every person, except an executor, an administrator with the will annexed, or a guardian, who is desig- nated by a will, or by any competent authority, to execute a trust created by a will ; and it includes such an executor or administrator, where he is acting In the execution of a trust created by the will, which is separable from his functions as executor or administrator. 7. The word, " surrogate ", where it is used in the text, or in a bond or undertalsing, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. 8. The expression, " judicial settlement ", where it is applied to an account, signifies a decree of a Surrogate's Court, whereby the account is made con- clusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified in the statute ; and an account thus made con- clusive is said to be " judicially settled." 9. The expression, " intermediate account ", denotes an account filed in the surrogate's office, for the purpose of disclosing the acts of the person account- ing, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement'. 10. The expression, " upon the return of a citation ", where it is used In a provision requiring an act to be done in the Surrogate's Court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned ; includes a supplemental citation, issued to bring in a party who ought to he, but has not been cited ; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited. 11. The expression, " person interested ", where it is used in connection with an estate or a fund includes every person entitled, either abSbluteiy or con- tingently, to share In the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of Isin, heir, devisee, assignee, grantee, or other- wise, except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment, or may apply for an inven- tory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed ; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending. 12. The term, " next of kin ", includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbe- queatbed residue of the assets of a decedent after payment of debts and ex- penses, other than a surviving husband or wife. 13. The expression, " real ■ property ", includes every estate, interest, and right, legal or equital)le, in lands, tenements, or hereditaments, except those which are determined or extinguished by the death of a person seized or pos- sessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word, " inheritance ", signifies real property, as defined in this subdivision, descended as prescribed by law. The expression, " personal property ", signifies every Isind of property, which survives a decedent, other than real property as defined in this subdivision, and Includes a right of action conferred by special statutory provision upon an executor or adminis- trator. (1880 eft. 178.) Ch. 1, § 3. THE SURROGATE AND HIS OFFICE. 5 The Surrogate under the Constitutions of 1846 and 1894. Section 2.— The Surrogate under the Constitutions of 1846 and 1894. There is a Surrogate's Court in each county, and, aside from exceptional cases hereinafter noted, the officer holding it is called the surrogate of his county. By the Constitution of 1846, as originally adopted, the county judge was required " to perform the duties of the office of sur- rogate " ; but the Legislature was authorized to provide for the election of a separate officer to perform such duties in any county " having a population exceeding forty thousand." The constitu- tional amendment of 1869 provided that " the county judge shall also be surrogate of his county ; but in counties having a popula- tion exceeding forty thousand, the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge.'' {Art. 6 § 15.) Under this authority general statutes were enacted (1847 cA. 276; 1871 ch. 859) providing for the election of such separate officers and surrogates ; and this legislation has been re- enacted in section 231 of the County Law. {See 1909 ch. 16.) But none of these constitutional or legislative provisions applied to the office of surrogate in the county of New York, which existed prior to the Constitution of 1846 and is therein rec- ognized by the provision {art. 14 § 12) that "all local courts, * * * including Surrogate's Courts of the city and county of New York,* * * shall remainjUntil otherwise directed by the Legislature, with their present powers and jurisdictions." {People ex rel. v. Garr, 86 iV^ J^ 512.) Subsequently the various laws regulating the Surrogate's Court of the city and county of New York were consolidated (1882 ch. 410 §§ 1178-1204) ; and thereafter (1892 cA. 642) provision was made for a Surrogate's Court therein to consist of two surrogates on and after January 1, 1893. When the present Constitution became operative January 1, 1895, the counties wherein the surrogate was a separate officer were' Albany, Cattaraugus, Cayuga, Chautauqua, Clinton, Colum- bia, Dutchess, Erie, Jefferson, Kings, Monroe, Montgomery, New York, Oneida,' Onondaga, Ontario, Orange, Oswego, Otsego, Queens, Refisselaer,- Saratoga, Steuben, St. Lalvrence, Suffolk, Ulster, Washington and Westchester — twenty-eight in number ; and in each of the' remaining counties the' eounty judge was also surrogate. 6 PART I : GENERAL PROCEDURE. Ch. 1, § 2. The Surrogate under the Constitutions of 1846 and 1894. There has been a separate surrogate also in I'ulton County since January 1, 1902, and in Schenectady County since January 1, 1903. The Constitution of 1894 provides : The existing Surrogates' Courts are continued, and the surrogates now in ofiBce shall hold their offices until the expiration of their terms. Their suc- cessors shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be fourteen years. Surrogates and Surrogates' Courts shall have the Jurisdiction and powers which the surrogates and existing Surro- gates' Courts now possess, until otherwise provided by the Legislature. The county judge shall he surrogate of his county, except where a separate surro- gate has been or shall be elected. In counties having a population exceeding forty thousand, wherein there is no separate surrogate, the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall be elected as a separate officer his salary shall be established by law, payable out of the county treasury. No county judge or surrogate shall hold office longer than until and Including the last day of December next after he shall be seventy years of age. Vacan- cies occurring in the office of county judge or surrogate shall be filled in the same manner as like vacancies occurring in the Supreme Court. The compen- sation of any county judge or surrogate shall not be incrensed or diminished during his term of office. For the relief of Surrogates' Courts the Legislature may confer upon the Supreme Court in any county having a population exceed- ing four hundred thousand, the powers and jurisdiction of surrogates, with authority to try issues of fact by jury in probate cases. (Art. 6 § 15.) These provisions have not affected the requirement of section 230 of the County Law (1892 ch. 686, ?iowl909 ch. 16) that "there shall continue to be elected in each of the counties now having such offices, a county judge and a surrogate, who shall severally hold the office for six years from and including the first day of January succeeding his election." This part of the statute, how- ever (see §2 0/ it), does not apply to the county of New York. The Constitution also provides that no person shall be eligible to the office of either county judge or surrogate — except in the county of Hamilton — " who is not an attorney and counsellor in this State " ; and also that a county judge or surrogate elected after January 1, 1895, in a county having a population exceeding one hundred and twenty thousand, shall not " practice as an at- torney or counsellor in any court of record in this State, or act as referee," and that " the Legislature may impose a similar prohi- bition upon county judges and surrogates in other counties." (Art. 6 § 20.) The surrogates at present affected by this pro- hibition are those in the counties of Albany, Erie, Kings, Monroe, New York, Oneida, Onondaga, Queens, Rensselaer and Westches- ter. By the statute abolishing the office of surrogate in Niagara County and increasing the salary of its county judge the latter Ch, 1, §§ 3, 4. THE SURROGATE AKD HIS OFFICE. 7 Official oath and bond. — Certificate of age. was prohibited from practicing law in any court of this State. (1894 ch. 109.) The Appellate Division recently held that it has no jurisdiction to suspend from practice, or remove from his ofSce as attorney, a surrogate who practices law notwithstanding this constitutional provision ; and it intimated that violations of those prohibitions relate to the office of surrogate, and are judicial rather than pro- fessional offences. {Matter of Silkman, 88 App. Div. 102, 84 Supp. 1025.) Section 3.— Official Oath and Bond. Each county judge and surrogate, before entering upon the duties of his office, must take and subscribe the oath or affirma- tion required by the Constitution (^art. 13 § 1) and also must execute and file the undertaking prescribed by section 231 of the County Law. (1909 ch. 16.) Sections 1880-1892 of the Code, entitled "Action by a Private Person upon an Official Bond ", apply to the pirosecution of a surrogate's bond ; and one of them is this : ■-J § 1886. Action Upon a Sdkkogate's Bond. — Where a surrogate, or an officer acting as surrogate, is guilty of any actionable default or misconduct In his office, the person Injured thereby may apply for leave to prosecute the delinquent's official bond. (1880 ch. 178.) Provision for the official bond of each surrogate of New York County is made by section 1178 of the C6fl§6lidfltion Act. (1882 ch. 410.) Section 4. — Certificate of Age. Under the Constitution of 1846, the Court of Appeals had held that a surrogate was not a " justice or judge " within the provision declaring that no person shall hold the office of justice or judge after he shall be seventy years of age {People ex rel. Lent V. Carr, 100 K Y. 236) ; but the Surrogate's Court is now a court bj Hcordl {Judiciary Law, § 2 suhi 7)j and the surrogate is a judg'e as that word is Used in the Code. (§ 3343 auh. 8.) Moreover the ^i^e^al Construction Law contains the follow- ing section .- S 26. JiTDGB. — The term^ judgg includes every judicial officer authorized, alone or with others, to he 202.) And where, pending a litigation over the probate of a will, the decedent's assets were paid into court and taken possession of by the sur- rogate it was held that thereby he did not acquire any disqualify- ing interest in the controversy inasmuch as in any event he was accountable for the property. (Matter of Hancock, ^\ N. Y. 284.) The surrogate is not disqualified to hear or decide " a special proceeding, matter or question, by reason of his being a resident or tax-payer of a town, village, city, or county interested therein " {Judiciary Law § 16) ; nor is he disqualified to act in a matter, wherein a corporation is a party, by reason of kinship to a stock- holder, for the stockholder is not the party. {Matter of Bodge <& Stevenson Manuf. Co., 11 N. Y. 101.) But it is otherwise where the surrogate himself is a stockholder in such corporation ; and it is apprehended that a case might arise where his kinship to such a stockholder would render it improper for him to act even though not disqualified by the letter of the statute. It has been held that a surrogate may entertain an application for the probate of a will even though he be related by aflQnity within the sixth degree to one designated therein as a legatee — the latter not being a party to the special proceeding. {Hopkins v. Lane, 6 Dem. 12, 3 Supp. 661, 19 St. Hep. 528, afd 2 Supp. 322, 17 St. Hep. 677.) This is a doubtful proposition, however, and the case itself but weakly supports it, as it also appeared that the legatee was a necessary witness to the will so that thereby his bequest had been annulled under the statute. A surrogate certainly is dis- qualified to entertain a proceeding to revoke the probate of a will if he be related td a legatee within the sixth degree ; for in such a proceeding the legatee is a necessary party. In Matter of Newcomhe's Witt (18 Supp. 549, 45 St. Hep. 806,) a contested will case, objection was made to the surrogate be- cause he was a personal friend of the decedent and of the prin- Ch. 1, § 9. THE SURROGATE AND HIS OFFICE. 11 Other disqualifications and disabilities. cipal beneficiary under the will ; and, in discussing the question thus raised, the court, at General Term, said : What amounts to a disqualification to act as a judi- cial officer and a surrogate is carefully defined by statute, and beyond that it is a matter of discretion with a judge whether he will act in a given case or not. But it is his duty to proceed with the trial of a cause, unless he is himself satisfied that he should not do so. It was also held that the Supreme Court has neither power nor inclination to interfere with such discretion of the surrogate. Section 9. — Other Disqualifications and Disabilities. The surrogate may not " practice or act as an attorney or coun- sellor," in his own court, or in a cause originating therein (Jiedi- ciary Law § 17) ; nor in any " special proceeding, which has been before him in his official character." (Judiciary Law § 18.) More- over his possible activity as a practitioner is restricted also by this Code section : * § 2495. SUEEOGATB WHEN NoT TO BD ConNSEL.— A Surrogate shaU not be counsel, solicitor or attorney in a civil action or special proceeding lor or against any executor, administrator, temporary administrator, testamentary trustee, guardian or Infant, over whom, or whose estate or accounts, he could have any jurisdiction by law. The surrogate of the county of Monroe shall not act as referee or practice as attorney or counsellor in any court of record in the State. (1893 eft. 686.) The last sentence of this section has been superseded by the Constitution which now forbids any surrogate in a county having a population exceeding one hundred and twenty thousand to " practice as an attorney or counsellor in any court of record in this State, or to act as referee." (Art. 6 § 20.) In People ex, rel. Kirh v. Weiant (30 JSu}i 475) it was held that a surrogate is not disqualified to proceed with the probate of a will merely because he had been attorney for the testator in an action still pending when he died, but which could not be affected by probating the will. On the other hand, where a surrogate had acted as attorney for the plaintiff in an action against execu- tors and had recovered a judgment against them, it was held that thereby he became disqualified to act as surrogate in a proceed- ing for the disposition of the testator's real property for the pay- ment of his dehts,including such judgment, even though he had long since ceased to act as such attorney and had been paid for 12 PART I : GENERAL PROCEDURE. Ch. 1, § 10. Special disqualifications. his services {Darling v. Pierce, 15 Hun 542) ; and where before his election a surrogate had rendered legal services to an execu- tor, as such, and thereafter assumed as surrogate to settle the executor's accounts, it was held that he had no jurisdiction in the matter and that his proceedings were void. ( Wigand v. Dejonge, 8 AbbH JST. 0. 260.) Moreover, as hereinbefore noted (see sec. 7 ante), a surrogate is forbidden to demand or receive any sort of " compensation, for giving his advice in a matter or thing pending before him, or which he has reason to believe will be brought before him for decision ; or for preparing a paper or other proceeding, relating to such a matter or thing"; nor is he permitted, directly or indirectly, to be interested in the costs of any special proceeding, brought before him, or in the Surrogate's Court of his county, except " a special proceeding to which he is a party, or in which he is interested." (Judiciary Law § 20.) And neither his law partner nor clerk can " practice before him, as attorney or coun- sellor in any cause, or be employed in any cause which originated before him." (Judiciary Law § 471.) In addition to these restrictions, which apply to all judges, there is the following specific prohibition of the Judiciary Law : § 472. Attoknbi Who is SnEKOBATE's Father oh Son Prohibited From Peacticing Befoeb Him. — A surrogate's father or son shall not practice or be employed as attorney or counsel, in any ease, in which his partner or' clerk is prohibited by law from so practicing, or being eHipIoyed. (1909 eft. 35.) And, in subdivision 6 of Code section 2509, it is now provided that The clerk or deputy clerk or other person employed in any capacity in a surrogate's oflBce, shall not act as appraiser, as attorney or counsel, or as referee, or special guardian, in any matter before the surrogate." (1908 eft. 103.) Section lo. — Special Disqualifications. The surrogate may be disqualified also under the following provisions : -• § 2496. Shebogate, WgsN Dis6"dalified. — In addition to his general dis- qualifications as a judicial" officer, a surrogate is disqualified from acting upon an application for probata, or for letters testamentary, or letters of adminis- tration, in each of the foflowing cases : 1. Where he is, or claims to be, an heir or one of the next of kin to the decedent, or a devisee Sr legatee of any part of the estate. 2. Where he is a subscribing witness, or is necessarily examined or to be examined as a witness, to any written or nuncupative will. 3. Where be is named as executor, trustee, or guardian, in any will, or deed of appointment, involved in the matter. (1880 eh. 178.) Ch. 1, §§ 11, 13. THE SURROGATE AND HIS OFFICE. 13 Waiver of disqualifications. — Surrogate's official designation. An objection to the power of a surrogate to act, based upon one of the disqualifications enumerated in this section, cannot be waived. (§ 2497.) In People ex rel. Kirk v. Weiant (30 Han 475) it was held that a surrogate is not disqualified to proceed with the probate of a will simply because he may have formed an opinion as to the de- cedent's testamentary capacity and so may be called as a witness ; but that the disqualification intended by section 2496, referring to a witness to a will, only applies where the surrogate is a sub- scribing witness to the will or where his testimony is necessary to prove it. In Hopkins v. Lane (6 Dem. 12, 3 Supp. 661, 19 St. Jtep. 628, «/'(? 2 Supp. 822, 17 St. Rep. 677) the surrogate was a warden of a church to which a bequest was made in a will pro- pounded for probate, and it was held that he was not thereby disqualified ; for, although he was one of several who managed the temporal affairs of the church, he had no title in its property and neither was, nor claimed to be, a legatee by reason of the bequest. Section ii. — Waiver of Disqualifications. But certain disqualifications may be waived under the fol- lowing section : § 2497. Disqualification ; When Objection Must be Taken. — An objec- tion to the power of a surrogate to act, based upon a disqualification, estab- lished by special provision of law, other than one of those enumerated in the last section (§ 2493), is waived by an adult party to a special proceeding before bim, unless It is taken at or before the joinder of issue by that party ; or, where an issue in writing is not framed, at or before the submission of the matter or question to the surrogate. (1880 ch. 178.) This provision seems to modify the common law rule which prohibits a disqualified judge from acting in a cause even by the consent of all the parties. ( Oakley v. Aspinwall, Z N. Y. 547 ; Matter of Bingham, 127 JST. Y. 296.) Infants cannot waive an objection based upon a disqualification ; and a failure to raise the question in their behalf does not prej- udice their rights. ( Wigand v. Dejonge, 8 AbVt Nl 0. 260.) Section 12. — Surrogate's Official Designation. Where the surrogate is a separate oflScer — as in each of the thirty counties named in section 2 of this treatise — he is surro- gate of his county and is so designated ; and 14 PART I : GENERAL PROCEDURE. Cir. 1, §§ 13, 14. Surrogate a local officer. — When Surrogate to attend at his office. Where the county judge is also surrogate, he may be designated, in any paper or proceeding relating to the office of surrogate, as the surrogate of the county, without any addition referring to liis office as county judge. • • * (§ 2483; see sec. 48 post.) This is but a re-enactment of an earlier statute (1853 ch. 648) which was repealed when Chapter 18 of the Code was adopted in 1880. Section 13.— Surrogate a Local Officer. The surrogate is a local oflScer, and, as a general thing, in the discharge of his duties he cannot act outside his county. How- ever,, in certain cases, he may act as surrogate of an adjoining county (§ 2485 ; see sec. 39 post) ; and he has authority, also, to « sign decrees, letters testamentary, of administration and guard- ianship, and orders, during the month of August, or such other month as he shall designate for his vacation, wherever he shall be passing such vacation, within the State." (§ 2505.) But the surrogate is not required to take cognizance of any matter during his vacation month ; and the fact that he may act in this manner, while absent from the county, does not prevent resort to a provisional surrogate under sections 2484-2488. {Matter of Frye, 20 Supp. 588, 48 St. Mep. 572.) Section 14, — ^When Surrogate to Attend at his Office. The Surrogate's Court is always open (see sec. e^2post); and the regular attendance of the surrogate is required by these Code provisions : * S 2505. When Suehogatd to Attend. — The surrogate must, unless pre- vented by sickness or other unavoidable casualty, attend at his office on Monday of each week, except during the month of August, or where Monday is a public holiday, on the following Tuesday, to execute the powers conferred and the duties imposed upon him. But the surrogate of any county, may, by an instrument in writing, under his hand, filed in the office of the clerk of the county at least twenty days before the first day of January in any year, designate a day of the week, other than Monday, on which, he will attend at his office, or a month other than August, during which he will be absent therefrom, or both during that year ; and where the county judge is also surrogate, he is not required to attend at his office on any day when the county court or the court of sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience requires. The surrogate may sign decrees, letters testamentary, of administration and guardianship, and orders during the month of August or such other month as he shall designate for his vacation wherever he shall be passing such vacation Within the State. (1892 ch. 525.) Ch. 1, §§ 15, 16. THE SURROGATE AND HIS OFFICE. 16 Surrogate's office — Clerks for Surrogate's office. Section 15. — Surrogate's OfBce. Except where other provision is made therefor by law, the board of supervisors of each county must provide the Surrogate's Court " with proper and convenient rooms and furniture, together with attendants, fuel, lights and stationery suitable and suflQcient for the transaction of its business." If this be not done " the court may order the sheriff to make the requisite provision ; and the expense incurred by him in carrying the order into effect, when certified by the court, is a county charge." ( County Law ' §42.) But the supervisors are required to furnisli only one proper room for the surrogate even though, under section 2505, he must also execute the duties of his oflBee, at such other " place, within his county, as the public convenience requires." (^People ex rel. Westbrook v. Supervisors of Montgomery Co., 34 JSun 599, 20 Wkly. Dig. 423.) Section 16.— Clerks for Surrogate's Office. ■^ S 2508. Gleeks in ShheoGaTe's Office. — Each surrogate may appoint, and at pleasure remoye, as many clerks for his office, to be paid by the county, as the board of supervisors of his county, or, in the city and county of New Tork, the board of aldermen, authorize him so to appoint. The board of supervisors or the board of aldermen, as the case requires, must fix the compensation of the clerk or clerks so appointed ; and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the office of the surrogate. A surrogate may appoint, and at pleasure remove, as many additional clerks to be paid by him, as he thinks proper. (1880 oh. 178; am'd 1884 ch. 630.) This section once contained provisions making it applicable to the county of New York; but they were repealed by chapter 530 of the laws of 1884 which provides for the appointment and re- moval, by the surrogate of the county of New York, of all clerks, attendants and employees in his office, or connected with his court. It is provided also by section 234 of the Tax Law (1909 ch. 62), relating to taxable transfers, that « the State Comptroller may, upon the recommendation of the surrogate, appoint, and may at pleasure remove assistants and clerks in the surrogate's office of the following counties," Albany, Dutchess, Erie, Kings, Monroe, New York, Oneida, Suffolk, Ulster and Westchester, at annual salaries to be fixed and paid by him. 16 PART I : GENERAL PROCEDURE. Ch. 1, § 17. Books to be kept by Surrogate. Section 17.— Books to be kept by Surrogate. The Code has the followmg sections concerning books to be kept by the surrogate : * § 2498. Books to be Kept by SnimOGATB. — Each surrogate must provide and keep the following books : 1. A record-book of wills, in which must be recorded, at length, every will, required by law to be recorded in Iiis office, with the decree admitting It to probate, and also, if the probate is not contested, the proof taken thereupon. 2. A record-book of letters testamentary and letters of administration, in which must be recorded all such letters, issued out of his court. 3. A record-book, in which must be recorded every decree, whereby the account of an executor, administrator, trustee, or guardian is settled. 4. A book, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order or decree, made thereupon ; with a memorandum of every report made, and other proceeding taken, founded upon a decree for such a disposition. 5. A book, containing a record of every decree or order, the record of which is not required by this section to be kept elsewhere ; together with a memo- randum of each execution issued, and of the satisfaction of each decree recorded therein. 6. A book, in which must be recorded aJl letters of guardianship, issued out of bis court. 7. A book of fees and disbursements, in which must be entered, by items, all fees charged or received by him for services or expenses, and all disburse- ments made or Incurred by him, which are chargeable against those fees, or to the county. The expense of providing the books specified in this section Is a county charge. (1880 c\ 178.) § 2499. The Same. — To each of the books, kept as prescribed In the last section, must be attached an alphabetical index, referring to the page of the book, where each subject may be found. The surrogate may keep two or more books, for a further division of the subjects specified in either subdivision of the last section; in which case, he must keep . a, separate index to each set of books. Each decree, revoking the probate of" a- will, or revoking or otherwise affecting letters testamentary, letters of administration, or letters of guardian- ship, or suspending or removing a testamentary trustee, or modifying or other- wise affecting any other decree, must be plainly noted at the end or in the margin of the record' of the will, letters, or original decree, with a reference to the book and page where the subsequent decree is recorded. The books, kept as prescribed in the last section, appertain to the surrogate's oflSce, and must be open, at all reasonable times, to the inspection of any person. (1880 cR. 178.) ' § 2502. Each surrogate must provide a beek - ta^ which shall, upon the application of any person interested, be recorded Instruments settling estates, in whole or in part, executed by one or more executors, administrators, or testamentary trustees and one or more legatees, devisees, distributees or creditors ; also like instruments executed by guardians and wards who have attained full age ; also instruments acknowledgittg- -payment of moneys pursuant to the pi'ovisions of degrees for the judicial settlement of accounts of executors, administrators, ^testamentary trustees and guardians. Every such instrument to be recorded shall be acknowledged or proved and certified in like manner as would be required in the case of a deed of real estate to be recorded in the same county; and the record thereof, or a certified copy of such record, shall be presumptive evidence of the contents of such instrument and its due exe- cution. The person presenting any such instrument for record shall pay to the clerk of the Surrogate's Court a fee of ten cents for each folio. The expense of providing the book. . specified in this section is a county charge. (1906 eft. 350.) Ch. 1, §§ 18,-20. THE SURROGATE AND HIS OFFICE. 17 Book relating to transfers. — Papers and books to be preserved, bonds filed. Section i8. — Book Relating to Taxable Transfers. The Tax Law contains this provision : § 238. Books and Forms to be Puknished by the State Compteollbb. — The state Comptroller shall furnish to each surrogate a hook, which shall be a public record, and in which he shall enter the name of every decedent upon whose estate an application to him has been made for the issue of letters of administration, or letters testamentary, or ancillary letters, the date and place of death of such decedent, the estimated value of his real and personal property, the names, places of residence and relationship to him of his heirs-at-law, the names and places of residence of the legatees and devisees in any will of any such decedent, the amount of each legacy and the estimated value of any real property devised therein, and to whom devised. These entries shall be made from the data contained in the papers filed on any such application, or in any proceeding relating to the estate of the decedent. The surrogate shall also enter in such bools the amount of the personal property of any such decedent, as shown by the inventory thereof when made and filed in his oflice, and the returns made by any appraiser appointed by him under this article, and the value of annuities, life estates, terms of years, and other property of any such decedent or given by him in his will or otherwise, as fixed by the surrogate, and the tax assessed thereon, and the amounts of any receipts for payment of any tax on the estate of such decedent under this article filed with him. The State Comptroller shall also furnish to each Surrogate forms for the reports to be made by such surrogate, which shall correspond with the entries to be made in such book. (1909 ch. 62.) Section 19. — Bound Volumes of Testimony, The stenographer of the Surrogate's Court, under the direction of the surrogate, must take full stenographic notes of all proceed- ings in which oral proof s are given ; and this testimony is required to be legibly written out at length by him, authenticated and filed in the surrogate's oflBce. (§§ 2541 t& 2542.) In certain cases it must be bound also : § 2543. Minutes op Testimony ; to be Bound in Volumes. — In the city and county of New York, in the county of Kings, and in any other county where the supervisors so direct, the minutes of testimony written out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorsed " Stenographic minutes," and numbered consecutively. Upon the record of a decree toade in any contested matter, the surrogate must cause to be made a minute, referring to each volume of the stenographic minutes, and to the pages thereof, containing any testimony relat- ing to the matter. (1880 ch. 178.) Section 20. — Papers and Books to be Preserved and Bonds Filed. * § 2500. Papers and Books to be Preserved and Bonds Filed. — (The surrogate must carefully file and preserve in his office every deposition, affidavit, petition, report, account, voucher, or other paper relating to any proceeding in his court ; and deliver to his successor all the papers and books kept by him. All bonds required to be filed with the surrogate or in his office must be proved or acknowledged as deeds are required by law to be proved or acknowl- edged. (1893 ch. 686.) Notwithstanding this section it has been held that the surro- 18 PART I : GENERAL PROCEDURE. Cn. 1, §§ 21, 23. General charge of books and records.— Searches, transcripts of records: Fees. gate may, by order, permit papers, which have been put in evi- dence in a contested matter before him, to be removed from the files of the court and returned to the person who furnished them, after they have been copied in the stenographer's minutes. {Matter of Smith, 15 St. Rep. 743.) Section 21. — General charge of Books and Records. In each coUtity except New York the general charge of the books and records of the surrogate's office is committed by section 26 of the County Law (1909 cli. 16) to the boai'd of supervisors who must provide for their safe keeping ; but this is subject to the legal rights of the officers using them or having their cus- tody. It is made their duty also to cause copies " to be made and certified whenever by reason of age or exposure, or any casualty, the same shall be necessary"; but the necessity of such work "for the security and safety " of the records, as well as the rea- sonableness of the compensation therefor, must be certified by the county judge or by a justice of the Supreme Court of the judicial district. Section 22.— Searches and Transcripts of Records: Fees therefor. Section 961 of the Code now is as follows : ' § 961. SnEEOQATES to. Seabch Files, and Make Ceetificatb. — A surro- gatfe must, upod i-equest, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and ddekcts in his office ; and either make one or more tran- scripts' therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which th^ custbdy legally belongs to him, cannot be found. (1909 cA. 240 § 84.) Section 255 of the Judiciary Law imposes a similar duty upon the clerk of the Surrogate's Court {see also Public Officevs Law 1909 ch, 61 § 66) ; and a violation of these requirements by either the surrogate or the clerk is a misdemeanor. {Penal Law 1909 ck. 88 § 1875.) § 2567. Fees op the SnnEOGATB. — A surrogate shall not charge or receive any fee, except as follows: xu 1 Where in a case prescribed by law, or in any other case, upon the aPDllcation of a party, he goes to a place, other than his office, or the court rooia where he is required to hold court, in order to take testimony, he may charge, and receive to his own use, ten cents for each mile for going, and the same sum for returning. 2. He must charge, and receive to the use of the county, for a copy of a Ch. 1, § 33. THE SURROGATE AND HIS OFFICE. 19 Surrogate to report fees and transmit certain papers. paper, ten cents for each folio, and for comparing and certifying a copy of papers on appeal or a case on appeal where priiited copies thereof are presented ty any party to any proceeding, one cent for each folio, except where the board of supervisors have allowed his clerk to receive fees for his own use ; and In that case, his clerk may charge and receive the same fee. Where In a proceeding in the Surrogate's Court the attorneys for all the adult parties interested and special guardians, or general guardians, appearing for all Infant parties interested, other than parties in default, or against v/hom a final order has been taken and is not appealed from, stipulate in vTiting that a paper is a copy of any paper whereof a certified copy is required by any provision of this act, the stipulation taltes the place of a certificate as to the parties so stipulating, and the surrogate or his clerk is not required to certify the same or entitled tOi any fee therefor. And the paper so proved by stipulation shall be received by the clerks of all the courts and by the courts, and shall be used or filed with the same force and effect as if certified by the surrogate or his clerk. (1904 ch. 137.) The clerk of the Surrogate's Court is authorized by the Code to certify a copy of any paper required or permitted by law to be filed or recorded in the surrogate's office. (§ 2509 sub. 3.) Where the surrogate or clerk " certifies, under his hand and official seal, that he has made diligent examination, in his office," for a paper which should he filed there and that it cannot be found, such " certificate is presumptive evidence of the fact so certified, as if the officer personally testified to the same." (§ 921.) The law presumes that each officer intrusted with the custody of public files and records will perforin his duty by keep- ing them safely in his office ; and if a paper is not found where it ought to be deposited or recorded the presumption is that it never existed, and, until rebutted, this presumption stands as proof of such non-existenee. (Deshong v. Uity of New York, 176 JV. Y. 475.) This section now regulates the fees chargeable by a surrogate of New York County. The statute of 1904 amending it also pro- vides that " all acts or parts of acts and any act or part of an act in relation to the fees of the surrogate in New York county, in- consistent herewith, are hereby repealed." (1904 ch. 137 § 2.) In section 2502, authorizing instruments settling estates, it is provided^ that " the person presenting any such instrument for record shall pay to the clerk of the Surrogate's Court a fee of ten cents for each folio." Section 23. — Surrogate to Report Fees and Transmit Certain Papers, Several unrelated matters are provided for in. the following section : 30 PART I : GENERAL PROCEDURE. Ch. 1, § 33. Surrogate to report fees and transmit certain papers. § 2501. When Fees Not to be Charged ; REPoni of Fees. — If the inven- tory pf personal property of a testator or intestate, filed in the office oj the surrogate, does not exceed the sum of one thousand dollars, no fees for any services done or performed by the surrogate shall be charged to or received from the executor or administrator. If the petition for letters testamentary or of administration shall allege that in the belief of the petitioner the inventory will not exceed such amount, no fees shall be received until it appears from the inventory when filed that the personal property does not exceed that sum. On the appointment of a guardian, if it appears that the application la made for the" purpose of enabling the minor to receive bounty, arrears of pay or prize money, or pension due, or other dues or gratuity from the Federal or State government, for the services of the parent or brother of such minor in the military or naval service of the United States, no fees shall be charged or received. The surrogate of each county, except New York, at his own expense, must make a report to the board of supervisors of the county, on the first day of each annual meeting thereof, containing a verified statement of all fees re- ceived or charged by him for services or expenses since the last report, and of all disbursements chargeable against the same, or to the county, stating par- ticularly each item thereof. {Am'd 1893 ch. 686.) By chapter 530 of the laws of 1884 the surrogate of New York county was required to ^^ charge and receive to the use of the county for a copy of a paper^ ten cents for each folio," and to keep a book showing in detail these fees received, the nature of the paper copied and the person by whom such fees are paid, and to pay the fees as received monthly into the treasury of the city of New York, furnishing at the same time to the comptroller of the city an exact account of the fees as received ; but, in so far as this statute conflicts with section 2567, it has been repealed. (1904 ch. 137 § 2.) Mccepting as provided for by section 2567 "a surrogate shall not charge, or receive any fees" (§2567); and "no fees, per- quisites or emoluments shall be charged or received by the sur- rogate of the county of New York, his assistants, clerks, employees or subordinates, for any services rendered by him or them by virtue of his or their official positions." (1884 ch. 530 §§ 6 cfc 7.) § 2503. What Papebs to be Transmitted to Secretary of State; Expenses Thereof. — A surrogate who admits to probate the will of a person, who was not a resident of the State at the time of his death ; or grants original or ancillary letters testamentary upon such a will, or original or ancillary letters of administration upon the estate of such a person ; must, within ten days thereafter, transmit to the Secretary of State, to be filed in his office, a certified copy of the will or letters. The surrogate's fees for making the copy, and the expenses of transmission, must be audited by the Comptroller, and paid out of the treasury upon his warrant. (1880 eft. 178.) CHAPTER II. OF PROVISIONAL SURROGATES. Section 24. Local Officers: Special Surrogate. 25. Temporary Surrogate. 26. Form: Appointment of Temporary Surrogate. 27. Notice of Application to Revoke. 28. Form: Order of Revocation. 29. What Provisional Surrogate may Act, and When. 30. Of the Special Surrogate. 31. What Proof of Authority Required. 32. Same Subject: Order, how Made. 33. Forms: Petition for Proof of Authority. 34. Notice of Application: Discretion of Justice. 35. Forms: Order Establishing Authority. 36. How Order is Revoked. 37. Notice of Application to Revoke. 38. Form: Order of Revocation. 39. Disqualification as to a Particular Matter. 40. Form: Surrogate's Certificate of Disqualification. 41. Disqualification Established by Order. 42. Form: Order Establishing Disqualification. 43. Provisions Relating to the County of New York. 44. Proof of Authority in the County of New York. 45. Provision as to Kings County. , 46. Proceedings Transferred to Supreme Court: How Regii- latedi , 47. Proceedings returned to Surrogate's Court. 48. Official Designation of Provisional Surrogate. 49. Compensation of Provisional Surrogate. 50. Records to be Kept by Provisional Surrogate. 51. General Authority of Provisional Surrogate^ Section 24. — Local Officers : Special Surrogate. The Constitution proTides : The Legislature may, on application of the board of supervisors, provide toif the election of local officers, ndt to exceed two in any county, to discharge the duties of county Judge and of surrogate, in cases of their inability or of a vacancy, and in such other cases as may he provided iy laic, and to exercise such other powers in special cases as are or may be provided by law. (Art. 6 § 16.) The matter in italics is new ; but otherwise the former Con- stitution in this particular has been retained. Under its autL -^dty 31 2a PART I : GENERAL PROCEDURE. Ch. 2, § 24. Local Officers : Special Surrogate. provision liad been made in a few counties for such local ofiSeers who are called " special county judges " or special surrogates ", as the case may be. In each of the following eight counties there is a separate sur- rogate, and both a special county judge and a special surrogate: Cayuga, Chautauqua, Jefferson, Oneida, Orange, Oswego, St. Lawrence (1849 ch. 306, am'd 1851 ch. 108 ; 1895 ch. 494) and Washington. (1855 cA. 148.) In Monroe county there is a separate surrogate and a special county judge (1864 ch. 368) ; but no special surrogate. In each of the following four counties the county judge is also surrogate, and there is a special county judge: Chenango (1851 ch. 538, am'd 1852 ch. 73), Sullivan (1854 ch. 88), Tioga (1849 ch. 306, arn'd 1851 ch. 108 cfc 1895 ch. 494) and Tompkins (1858 ch. 279). In no other county has provision been made for either a special county judge or a special surrogate. By section 230 of the County Law it is provided : There shaU continue to be elected in ,each of the counties now having such offices, * * * a special county judge and a special surrogate, pursuant to the several acts of the Legislature creating and respectively deBning the terms and duties thereof. There shall continue to be appointed by the Governor, by and v?ith the consent of the Senate, if in session, * * * a special county Judge or special surrogate, when a vacancy shall occur in either of such offices, and the person so appointed shall hold the office until and including the last day of December succeeding the first annual election thereafter at which such vacancy can be lawfully filled. (1892 ch. 686; 1909 cli. 16.) Provision has been made in the various- statutes creating these offices, or in special legislation relating thereto (1861 ch. 290; 1865 ch. 310; 1872 ch. 272; 1895 ch. 494), for the compensation of the respective incumbents; and it has been held that Code section 2498, relating to the remuneration of an officer who acts as surrogate, does not apply to them. (Matter o, Tykr, 60 Hun 566, 15 Supp. 366, 39 St. Rep. 835; People ex rcl. ^Vivien Y: ■-'nper- visors of Oneida Co., 82 Ilun 105, 31 Supp. 63, tjii .■•'(: Rep. 802.) When acting as surrogate a local officer elected, as prescribed in the constitution to dischai'ge the duties of surroga^fe, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated as the " special surrogate of hia county. (§ 2483; see sec. 48 post) Formerly a statute (1858 ch. 218) required every officer author- ized to act as surrogate to give a bond, in like manner as the surrogate, before entering upon or discharging any of the duties Ch. 2, § 25. OF PROVISIONAL SURROGATES. 23 Temporary Surrogate. of surrogate, but it has been repealed (1880 ch. 245) ; mirl now there is no provision for a bond by such officer except a' 'le mn,y be required to give security by order of a justice of tlie .Miju-eme Court pursuant to section 2488. Section 25 — ^Temporary Surrogate. § 2492. Tempokaky Sdeeogaxe ; When IBoahd of Sdpbkvisoes M„t Ap- POINT. — In any county, except New York, if tbe surrogate is disabl'id, b7 reason of sickness, and there is no special surrogate, or special count.T Midg:: of the county, the board of supervisors may, in its discretion, appoint r, suit- able person to act as surrogate, until the surrogate's disability ceases ; or, until a special surrogate or a special county judge is elected or appointed, A person so appointed must, before entering on the execution of the outies of his offlcev take atld iaie an oath of office, and give an oflBcial Bond as pre- scribed by la*-, with respect to a person elected to the office of Surrogate. (1893 eft. 686.) It will be observed that a temporary surrogate can be appointed only where " the surrogate is disabled by reason of sickness, and there is no special surrogate, or special county judge of the county." And the appointment may be revoked, without prejudice to any proceedings theretofore taken by virtue thereof, by a justice of the Supreme Court of the judicial district, em- bracing the surrogate's county, upon proof that it was improvidently made, or that the cause of making it has become inoperative. ( § 2489 ; see sec. 36 post.) "Whenever the appointment of a temporary surrogate has been revolted " the unfinished business in any proceedings " taken by virtue thereof " must be transferred to, and may be completed by the surrogate in the same manner and with like effect as where a new surrogate completes the unfinished' business of his prede- cessor." (§ 2489 ; see § 2481 subs. 8 cfe 9, also sees. 36 cfc 72 post.) The statute makes no provision for the official title of such one acting as surrogate ; but it seems that he may be designated as either " temporary surrogate " or " temporarily acting as surro- gate." During the time he acts, he has a compensation equal pro rata to the salary of the surffigfite. (§ 2493; see sec. 49 post.) A temporary surrogate is practically the surrogate while acting as such ; and either he, or the clefk of tTie Surrogate's Court held by himj'-must sign the certificates of probate granted and letters issued while he is acting, and certify the record thereof. And where any act is done or proceeding is taken by or before him, or by his authority, it must be recorded, or the proper minutes thereof must be entei*ed, in the books of the Surrogate's Court in like 24 PART I ; GENERAL PROCEDURE. Ch. 3, § 36. Form : Appointment of temporary Surrogate. manner as if done by or taken before the surrogate. (§2494 ; see sec. ^opost.) Formerly the Supreme Court, succeeding to the powers of the Chancellor, was authorized by the Revised Statutes (2 B. S. 80 § 54 as am'd 1830 c/i. 320 § 21) to commission a suitable person to act as surrogate in certain contingencies (Matter of Hathaway, 71 JVl Y. 238) ; but this provision has been repealed. (1880 ch. 245.) Section 26. — Form : Appointment of Temporary Surrogate. By the Board of Supervisors of county, at a regular session thereof held in the supervisor's rooms at the Court House in the of , N. Y. on the day of 19. . :— Present Super- visors, constituting the whole Board thereof — the following Resolution was adopted: Whekeas by the written statement of Hon , the surrogate of county, and by the certificate of M. D., his family physician, and by the affidavit of re- siding in the of N. Y., and by other representations duly made in open session before us, it has become manifest to the Board of Supervisors of county that Hon the surrogate of said county, is disabled by reason of sickness so that he cannot discharge the duties of his office, and there being no special surrogate or special county judge of said county, now, therefore. Be it resolved, by the Board of Supervisors of county, that an occasion has arisen for the appointment of a temporary surro- gate, as provided for by section 2492 of the Code of Civil Procedure; and Be it further resolved that Esq., counsellor at law, residing in the of , N. Y., be, and he hereby is, appointed to act as surrogate of county until the disability of the surrogate thereof ceases, or until a special surrogate or a special county judge has been elected or appointed; and Be it further resolved that said , Esq., before entering on the execution of the duties of his office, take and file his oath of office and give an official bond as prescribed by law, with respect to a person elected to the office of surrogate, as required by said section 2492 of said Code. Dated at N. Y., the day of ..,. , 19. •• (To 6e certified by Clerk of the Board.) There is no provision as to the manner whereby the sickness of a surrogate may be disclosed to the board of supervisors— wfiether %'aflflaavit and certiflcate,--6f "by an investigation pursued by the Cn. 3, §§ 37, 38. OF PROVISIONAL SURROGATES. 35 Notice of application to revoke. — Form : Order of revocation. board or a committee thereof ; and either or both metliods may be used. As the appointment of a temporaiy surrogate compels the county during its continuance to pay a double surrogate's salary, the board will not exercise the discretion conferred upon it by section 2492, and appoint a temporary surrogate, unless it clearly becomes evident that the public interests require such action. Section 27. — Notice of Application to Revoke. There seems to be no law or rule requiring notice of the appli- cation for an order, revoking such an appointment, to be given to any one ; and neither the form nor character of the allegations upon which it is to be made has been prescribed except that there must be proof that the appointment " was improvidently made, or that the cause of making it has become inoperative." (§ 2489.) On principle, however, notice should be given to the temporary surrogate so that, before his office is taken from him, he may have his day in court and be given opportunity to show that the surro- gate's disability continues. So, too, if the application be made by a party to a special proceeding, pending before the temporary surrogate, notice should be given to the other parties as well as to the temporary surrogate. Undoubtedly any justice of the Supreme Court, before whom such an application is made, will require appropriate notices thereof to be given. {See sec. 2Tpost.) Where an application-fro revoke the appointment is based upon allegations showing that it was improvidently made, the action of the board of supervisors is under review in the proceeding ; and notice thereof becomes almost a prerequisite. Section 28.— Form : Ordef of Revocation. StiPREMB Court : County. In the Matter of the Revocation of the ) Appointment of to Act as vOrbebv Temporary Surrogat e of County. ^ The Board of Supervisors of county, pursuant to section 3493 of the Code of Civil Procedure and by its resolution of the Jay of 19 ■ • . having appointed Esq., to act as temporary surrogate of said county, during the disability of jjon , the surrogate thereof, by reason of his sickness ; and 36 PART I : GENERAL PROCEDURE. Ch. 2, § 29. What Provisional Surrogate may Act, and When. It now appearing by the petition of verified the day of 19. ., and by the aflidavits of and of each verified the day of 19. ., and hereto annexed, that said surrogate of county has recovered entirely from such sickness, and tliat liis consequent disability has ceased, so that the cause of making such appointment has become inoperative ; and upon motion of Esq.,. .attorney for said peti- tioner, I DO HEREBY ORDER that Said appointment of Esq., to act as surrogate of county, be, and tlie same hereby is, revoked; and this, without prejudice to any proceeding heretofore taken by virtue thereof. Dated at. ., , ., N. Y., the day of 19... J. S. C. Judicial District. When the order has been granted it must be entered in the office of the county clerk ; but a certified copy of it should be filed with the clerk of the Surrogate's Court, as it furnishes record evidence of the fact that the surrogate's powers have been restored to him and that the authority of the temporary surrogate has ceased. Section 29. — What Provisional Surrogate may Act, and When. In actual practice a temporary surrogate seldom is appointed ; but, where the surrogate is disabled by sickness, or otherwise, the procedure is generally under the following section : J § 2484. Vacancy on Disability ; Who to Act as Sueeogate. — Where, in any county, except New York, the office of surrogate is vacant ; or the surro- gate is disahled by reason of sickness, absence or lunacy, and special provision is not made by law for the discharge of the duties of his office in that con- tingency ; the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows : 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge. 3. If there is no special county judge, or he is in like manner disabled, or is .precluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district attorney. But before an officer is entitled to act, as prescribed in this section, proof of his authority to act as prescribed in section twenty-four hundred and eighty- seven of this act must be made. In any proceeding in the Surrogate's Court of the county of Kings, before either of the officers authorized in this section to discharge the duties of the office of surrogate of such county for the time being, if an issue is joined or a contest arises either on the facts or the law, such officer, in his discretion, may, by order transfer such cause to the Supreme Court to be heard and decided Ch. 3, § 30. OF PROVISIONAL SURROGATES. Of the Special Surrogate. at a special term thereof, held in such county, which order shall be recoi in the surrogate's office. A certified copy o£ such order, together with appropriate certificate or certificates of the authority of the officer to acl surrogate, shall he sufficient and conclusive evidence of the jurisdiction authority of the Supreme Court in such matter or cause. After a final o or decree is made in the matter or cause so transferred to the Supreme Co the court shall direct the papers to be returned and filed, and transcripti all orders and decrees made therein to be recorded in the surrogate's offici such county ; and when so filed and recorded, they shall have the same e as if they were filed and recorded in a case pending in the Surrogate's C of such county. (1893 ch. 686.) When the special county judge in a county wliere there i separate surrogate, the county judge or the district attor « acts as surrogate he must be designated by his official title, -^ the addition of the words, 'and acting surrogate'" (§ 248 but none of these officers has any authority to act except by tue of section 2484, and a strict compliance with its requireme is essential. Both county judge and district attorney have st in the line of succession as provisional surrogates ever since Revised Statutes (2 B. ^S. 79 §§ 50 db 54 am'd 1830 ch. 320 § 2 and the legislation authorizing one or the other of them to in case of the surrogate's disability or incapacity is constitutio: {People ex rel. Oakley v. Petty, 32 Sun 448. Section 30 — Of the Special Surrogate. The special surrogate, referred to in section 2484, not onlj the local officer elected to discharge the duties of surrogate w) the latter is a separate officer (e. g. in each of the counties of Cayt Chautauqua, Jefferson, Oneida, Orange, Oswego, St. Lawrence i Washington), and always designated as special surrogate, also is the local officer elected to discharge the duties of cou judge and surrogate where the county judge is also surrogi (e.. g. in each of the counties of Chenango, Sullivanand Tompkii although commonly called a " special county judge " ; for each these is the special surrogate of the Code. (§ 2483.) On other hand, the " special county judge ", mentioned in the sec( subdivision of section 2484, is the local officer elected to discha the duties of the county judge in a county where the surrogat a separate officer. The special surrogate, named in the first subdivision of sect 2484, is authorized and empowered, both by the Constitution £ the statute creating his office, to discharge the duties of the s rogate in case of " inability or of a vacancy " irrespective of sect 28 PA::T I : GENERAL PROCEDURE. Ch. 3, § 31. What Proof of Authority Required. 2484 which, by its terms, only applies to cases where " special provision is not made hy laio for the discharge of the duties of his office in that contingency: " {People ex- vel. Slides v. Supervisors of Oneida Co. 82 Hun 105, 31 Supix 63, 63 St. Rep. 362) ; while the "special county judge", where there is a separate surrogate, is not so authorized by the statute creating his office, but, like the county judge or district attorney, derives his authority to dis- charge the duties of surrogate solely from, and " as prescribed in, section " 2484, and so requires for his connnission, and as " proof of his authority to act, an order of a justice of the Supreme Court." There are, however, difficulties of construction presented by any view of the matter ; for the special surrogate, although deriv- ing his authority from the Constitution and special legislation, is named va. section 2484 with the other three officers whose authority is conferred only by that section, which also prescribes the con- ditions of its exercise. But is not this merely because the special surrogate, by virtue of his office and constitutional powers, neces- sarily comes first in any designated order of succession ? Suffice to say that, at present, the current of authority favors the view that a special surrogate may act without proof of his authority being made as prescribed in section 2487. {Matter of Tyler, 60 Hun 566, 15 Siipp. 366, 39 St. Rep. 835 ; People ex rel. Sholes v. Supervisors of Oneida Co., 82 Sim 105, 31 Supp. 63, 63 St. Rep. 362 ; see also Ross v. Wigg, 36 Jlun 107, aff'd 101 iV: r: 640 ; Aldinger v. Pu,^, 132 JST. T. 403.) Section 31. — What Proof of Authority Required. Although it may not be required of a special surrogate, the authority of any other officer to act, as prescribed in section 2484, must be established under the following section : ^ § 2487. Peoof of AuTHoniTY. — The authority of another officer or, in the county of New Torls, of the Supreme Court, to act as prescrihed^ in the last three sections, must be proved in one of the following modes : 1. Where the surrogate Is disqualified or precluded from acting in a par- ticular matter, that fact may he proved by the surrogate's certificate thereof ; or, except- as otherwise prescribed in section twenty-four hundred and eighty- five, by affidavit or oral testimony. 2. The fact that the surrogate is so disqualified or precluded, or that he Is disabled, or that the office is vacant and also the authority of the officer, or of the court, as the case may be, to act in his place, may be proved, and are deemed conclusively established by an order of a Justice of the Supreme Court Ch.3,§33. op provisional surrogates. 29 Same subject : Order, how made. of the judicial district embracing the county. After such an order is made, the surrogate shall not make the certificate specified in section twenty-four hundred and eighty-five of this act, and if such a certificate has been thereto- fore filed, the powers and jurisdiction of the surrogate therein designated as specified in that section, thenceforth cease. (1895 ch. 046.) This order of a justice is the commission of the ofiBcer entitled to act, as prescribed by section 2484. Formerly, when there was no person capable of acting, the Supreme Court was author- ized, upon petition, " to issue a commission to some suitable per- son, empowering him to act as surrogate in the premises." (1830 ch. 320 § 21 ; Matter of Hathaway, 11 R. Y. 238.) Section 32. — Same Subject : Order, how Made. The order, proving the authority of an oflScer to act as sur- rogate, is practically a discretionary one with the Supreme Court justice : I § 2488. Id. ; When and How Made. — An order may be made as prescribed in subdivision second of the last section, upon or without notice, as a justice of the Supreme Court of the judicial district embracing the county thinks proper. It must recite the cause of the making thereof, it must designate the officer or court empowered to discharge the duties of the office of surrogate ; and, if It relates to a particular matter only, it must designate that matter. It may. In the discretion of the justice, require an officer to give security for the due discharge of the duties therein. Where the office of surrogate is vacant, or the surrogate is disabled by reason of lunacy, the Attorney-General, if directed by the Governor, must, or the district attorney, upon his own motion, may apply for the order, and a justice of the Supreme Court of the judicial district embracing the county must grant it upon his application. A justice of the Supreme Court of the Judicial district embracing the county may also grant the order upon the application of a party, or a person about to become a party to any special proceeding in the Surrogate's Court. Where the surrogate is sick or absent, the granting of the order rests in the discretion of the justice, and its effect may be qualified as the justice thinks proper. (1889 eft. 495.) In actual practice these provisions seldom are resorted to in case of a vacancy in the ofBce as usually it is filed forthwith by the Governor. Where the surrogate is temporarily absent from the county, during his vacation month, an officer may be thus authorized to perform,-his duties, even though the surrogate is empowered by section 2505 to " sign decrees, letters testamentary, of adminis- tration and guardianship, and orders, during the month of August or such other month as he shall designate for his vacation wherever he shall be passing such vacation within the State." {Matter of Frye, 20 Supp. 588, 48 St. Bep. 572.) 30 PART I : GENERAL PROCEDURE. Ch. 2, § 88, Forma : Petition for proof of authority. Section 33. — Forms : Petition for Proof of Authority. To the Honorable , Justice of the Supreme Court, Judicial District. The petition of of the of , county of and State of New York shows: — 1. That your petitioner is district attorney of the county of (a county within the judicial district of the State of New York) and its county judge is also surrogate thereof — there being no separate surrogate of said county; and that no local ofHcer has ever been provided for said county to discharge the duties of county judge and surrogate, in case of his inability or of a vacancy, as pro- vided by section 16 of article 6 of the Constitution; and 2. That Hon is the county judge and surrogate of said county and has become disabled by reason of lunacy so that he can no longer discharge the duties of his office as surro- gate; (and that he has been adjudged to be an incompetent person, upon the return of a commission and inquisition, by the, final order of the Supreme Court entered in the clerk's office of county on the day of , 19.., in proceedings duly had in said court for the appointment of a committee of his person and property) ; and 3. That no special provision has been made by law for the discharge of the duties of the office of surrogate of the said county, in case of the disability of the surrogate thereof, otherwise than as prescribed by section 2484 of the Code of Civil Procedure which requires the duties of such office to be discharged, until said disability of the surro- gate thereof ceases, by your petitioner who is the district attorney of said county. Whekbpore your pettioner prays for an order, as provided by sec- tion 2488 of said Code, establishing the fact that said surrogate is disabled by reason of lunacy, and proving the authority of your petitioner, as district attorney of said county, to discharge the duties of the office of surrogate thereof until such disability ceases. Dated at N. Y. the .... day of , 19... Petitioner. (Add verification as below.) {Fortn, for petition ly Party.) To the' Honorable , Justice of the Supreme Court, Judicial District. The petition of of the of , county of and State of New York shows: — Ch. 2, § 33. OF PROVISIONAL SURROGATES. 31 Forms : Petition for proof of authority. 1. That your petitioner is named as executor in the last will of who recently died within the county of , being a resident thereof at the time of his death; and that your petitioner has heretofore duly instituted a special proceeding for the probate of said will, before the surrogate of said county, by filing a petition praying that said will be proven and that the necessary parties be cited; and that, in said proceeding and upon such petition, a citation has been duly issued returnable before said surrogate on the day of 19 • ■ ; and 2. That there is a county judge of said county (a county within the judicial district of the State of New York), and also a separate surrogate thereof; but that no local officer ever has been provided for said county to discharge the duties of either the county judge or the surrogate thereof, in case of his inability or of a vacancy, as provided by section 16 of article 6 of the Constitution; and 3. That Hon is the separate surrogate of said county; and that, as your petitioner is informed and verily believes, he has departed from the county and State, and will not return before at least the . . . day of 19 . . , until which time he has become disabled by absence so that he cannot discharge the duties of his office on the return day of said citation or otherwise in said special proceeding; and 4. That no special provision has been made by law for the discharge of the duties of the office of surrogate of the said county, in case of the disability of the surrogate thereof, otherwise than as provided by section 2484 of the Code of Civil Procedure which requires the duties of such office to be discharged, until said disability of the surrogate ceases, by the county judge of said county who is Hon. residing at Wheeefore your petitioner prays for an order, as provided by section 2488 of said Code, establishing the fact that said surrogate is disabled by reason of absence, and proving the authority of said Hon. as county judge of said county to discharge the duties of the office of said surrogate thereof, until such disability ceases. Dated at .... , N. Y., the day of , 19... Petitioner. I STATE OF NEW YORK County of )». ss. City of of the . .' of county of and State of New York, being duly sworn, says: that he is the petitioner named in the foregoing petition and that She same is true to the 32 PART I ; GENERAL PROCEDURE. Ch. S, §§ 34, 35. Application : Discretionof Justice. —Forms: Order Establishing Authority. knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (Jurat.) {Signature.) Section 34. — Notice of Application : Discretion of Justice. It is pro'vided in section 2488 that the order, proving the authority of another officer to discharge the duties of a surrogate during his disability or a vacancy in the olSce, ma;y be made " upon or without notice, as a justice of the Supreme Court of the judicial district embracing the county thinks proper." Undoubt- edly this clumsy phraseology means that the justice to whom an application is made shall determine the question of notice accord- ing to the circumstances of the particular case. It seems that where the surrogate is disabled by reason of lunacy, or his office is vacant, and the application is made by either the Attorney-General at the instance of the Governor, or by the district attorney upon his own motion, the justice has no discretion, but must grant the application ; but that, " where the surrogate is sicJc or absent, the granting of the order rests in the discretion of the justice, and its effect may be qualified as the justice thinks proper." (§ 2488.) Where the application is made by " a party or a person about to become a party to any special proceeding in the Surrogate's Court " the whole matter is discretionary with the justice. (§ 2488.) Section 35. — Forms : Order Establishing Authority. suPBBME cotTET : County. In the matter of the Application oif District Attorney of County for an Order establishing his Authority to Discharge the Duties of >■ order. the Surrogate of said County during the j iRsalbility of Hon the | ( County Judge and) Surrogate thereof. J It appearing to my satisfaction by the petition of verified the day of , 19.., (and by the affidavit of , verified the .... day of , , 19. ., and by the Ch. a, § 35. OF PROVISIONAL SURROGATES. 83 Forms : Order Establishing Authority. certificate of , M. D. , a practicing physician of verified the day of 19 . . ,) tliat said is the district attorney of county, -which has a {or, no) separate surrogate ; and that no local officer has been provided for said county to discharge the duties of (county judge and) surrogate, in case of his inability or of a vacancy, as provided by section 16 of article 6 of the Constitution ; and that Hon is the (county judge and) surrogate of said county, and has become disabled by reason of lunacy so that he can no longer discharge the duties of his office as surrogate ; and that no provision has been made by law for the discharge of the duties of his office of surrogate, in that contingency, othervyise than as provided by section 3484 of the Code of Civil Pro- cedure Now, therefore, (on motion of Esq. attorney for said petitioner, and) because I am satisfied that said Hon , the surrogate of said county, is disabled by lunacy, as aforesaid I DO HEREBY ORDER that - . . . Esq., the district attorney of county, be, and he hereby is, designated as the officer em- powered to discharge the duties of the office of surrogate of said county until such disability of the surrogate thereof ceases ; and {If security ie required) I DO FURTHER ORDER that Said Esq. , be, and he hereby is, required to give security for the due discharge of such duties, and, -to that end, that he execute and deliver to the county clerk of county a joint and several undertaking, with two or more sureties being resident freeholders, to be approved by such clerk, to the effect that he will faithfully perform such duties, and apply and pay over all moneys and effects that may come into his hands as such acting surro- gate in the execution of his office— in like manner as required of every person appointed to the office of surrogate by section 331 of the County Law. Dated the day of , 19. .. , J.S. C. Judicial District. 34 PART I : GENERAL PROCEDURE. Ch. 2, § 85. Forms : Order Establishing Authority. BUPKEME COURT : County. In the Matter of the Application of for an Order establish- ing the Authority of the County Judge of County to discharge the Duties j- qrdbb. of Surrogate of said County during the dis- ability of Hon the Sur- rogate thereof. It appearing to my satisfaction by the petition of verified the day of , 19 . . , (and by the affidavit of verified the .... day of 19 . . , or, by the certificate of Hon , the surrogate of county) that said (^petitioner) is a party to a proceeding for the probate of the will of deceased, which is now pending before the surrogate of county, and that in such proceeding a cita- tion has been duly issued returnable before said surrogate on tlie day of 19 . . ; that said county has a (or, no) separate surrogate, but that no local officer has been provided therefor to discharge the duties of surrogate in case of inability or of a vacancy, as allowed by section 16 of article 6 of the Constitution ; and that Hon is the (county -judge and) surrogate of said county, but has become disabled by reason of absence from the_county and State so that he cannot discharge the duties of his office as surrogate, and that no provision has been made by law for the discharge of the duties of his office as surrogate in that contingency otherwise than as provided by section 3484 of the Code of Civil Proce- dure, Now, therefore, (on motion of , Esq., attorney for said petitioner, and) because I am satisfied that said Plon , the surrogate of said county is disabled by absence, as afore- said I DO HEREBY ORDER that Hon the district attor- ney (or, the county judge) of county, be, and he hereby is, designated as the officer empowered to discharge the duties of the office of surrogate of said county until such disability of the surrogate thereof ceases. (Order may be gualified, e. g.) subject, however, to this qualification that he is only authorized and em- powered hereby to act in the discharge of such duties on Mondays and Tues- days of each week but not on any other day. (Or other similar limitations; and if security be required, add as in preceding form.) Dated at „ N, Y., the .... day of 19... J. S. C. Judicial District. « Where the surrogate is sick or absent, the granting of the order rests in the discretion of the justice, and its effect may be Ch. 2, §§ 36, 37. OF PROVISIONAL SURROGATES. 36 How order is revoked. — Notice of application to revoke. qualified as the justice thin/cs proper" (§ 2488); and the order may restrict the designated officer, in discharging the duties of the ofiBce of surrogate, to specified days or occasions tlius limiting " the time during wliich he so acts." This may affect the com- pensation payable to such an officer under section 2493. Section 36.^How Order is Revoked. Where such an order has been made for any cause except a vucancy in the office of surrogate it may be revoked under the following section : '^ § 2489. How Adthobitt Shpeeseded. — Where an order is made by a Justice of the Supreme Court of the judicial district embracing the county as pre- scribed in the last two sections or an appointment is made by the board of supervisors as prescribed in section twenty-four hundred and ninety-two of this act, for any cause except a vacancy in the office of surrogate, it may be revolted, without prejudice to any proceedings theretofore talten by virtue thereof, by a justice of the Supreme Court of the judicial district, embracing the surrogate's county, upon proof that it was improvidently made, or that the cause of mailing it has become inoperative. Such an order or appointment made upon the ground that the surrogate's office is vacant, is superseded without any formal revocation, by the filling of the vacancy. After the order or appointment is revoked, or the vacancy is filled, as the case may be, the unfinished business in any proceedings taken by virtue of the order or appointment, must be transferred to, and may be completed by the surrogate in the same manner and with like effect as where a new surrogate completes the unfinished business of his predecessor. (1889 ch, 495.) It is provided in section 2481 -^^ A surrogate, in court or out of court, as the case requires, has power: * * * 8. Subject to the provisions of law, relating to the disqualification of a Judge In certain cases, to complete any unfinished business, pending before his predecessor in the office, including proofs, accountings, and examinations. 9. To complete, and certify and sign in his own name, adding to his signa- ture the date of so doing, all records or papers, left uncompleted or unsigned by any of his predecessors. * » • (See see. 72 post.) Section 37. — Notice of Application to Revoke. There is no rule of law or practice requiring notice of an ap- plication for the order, revoking an order designating an ofBcer to discharge the duties of the ofBce of surrogate, to be given to any one ; and neither the form nor character of the allega- tions, upon which it is to be made, have been prescribed, except that ^here must be proof that_ the appointment " was' impro"vi- dently made or that the cause of making it has become in- operative." (§ 2489.) But it seems that notice should be given to the officer acting as surrogate so that, in a proper case, he may have opportunity to show that the appointment was well made or 36 PART I . GENERAL PROCEDURE. Ch. 2, §§ 38, 39. Form: Order of revocation. —Disqualifloation as to a particular matter. thatdts cause stillis operative. If the application be made by a party to a special proceeding pending before the officer acting as surrogate, notice should be given to the other parties also. How- eyer, as such an order may be made by a justice of the Supreme Court of his own motion^ the whole procedure in each case is prac- tically under his control ; and no notice is essential except such as may be required by the justice to whom application is made for the order of revocation. {See sec 27 ante.) Section 38.— Form : Order of Revocation. Supreme Court County. In the Matter of the Revocation of the Order establishing the Authority of the bounty Judge of County to dis- charge the duties of Surrogate thereof. The county judge of county having been .duly designated, by the order of Mr. Justice on the day of 19.., to discharge the duties of the office of surrogate of county during the disability of the surrogate thereof, by reason of his absence from the county; and It now appearing by the petition of '. verified the .... day of , 19.., (and by the certificate of Hon , the surrogate of said county, dated ...... , 19..,) that said surrogate has returned to said county so that the cause of making such order has become inoperative; (and upon motion of Esq., attorney for said petitioner), I DO HEREBY ORDER that Said order of Mr. Justice , designating the county judge of county as the officer em- powered to discharge the duties of surrogate during the absence from said county of the surrogate thereof, be,, and, the same hereby is, re- voked, but this without prejudice to any proceedings heretofore taken by virtue thereof. Dated at N. Y , 19, .. ..., J. S. C. Judicial District. Section 39.— Disqualification as to a Particular Matter. § 2485. IP SnEEOGATE Disqualified, Who to AcT.^-Where the- snrrogate of any county, except New York is precluded or disqualifled from acting witli respect to any particular matter, his jurisdiction and powers witli respect to that matter vest in the several officers designated in the last section. In the order therein provided for. If there is no such officer qualified to act therein, the surrogate may file In his office a certificate, stating that fact; specifying the reason why he Is dis- qualified or precluded ; and designating the surrogate of an adjoining county, other than New Yort, to actltt.his place In the particular matter. .The surro- Ch. 2, § 40. OF PROVISIONAL SURROGATES. 87 Form : Surrogate's Certificate of Disqualification. gate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county. (1893 ch. 686.) " The several officers designated " in section 2484 in the order there provided, are : (1) The special surrogate ; (2) if there be no special surrogate, or he is in like manner precluded or disquali- fied, the special county Judge ; (S) if there be no special county judge, or he is in like manner precluded or disqualified, the county Judge ; and (4) if there be no county judge, or he is in like manner precluded or disqualified, the district attorney. The authority of another officer to act under section 2485 evidently rests upon the fact that " the surrogate is precluded or disqualified from acting " with respect to the particular matter, for thereiq^on his jurisdiction and powers with respect to that matter vest in the other officer ; and the fact that the surrogate is so disqualified or precluded from acting may be proved by his own certificate, or by "affidavit or oral testimony" (§ 2487), except that a certificate is necessary when the surrogate of an adjoining county is to be designated. (§ 2485.) Where the surrogate makes a certificate as to his disqualifica- tion with reference to a particular matter, it is sufficient proof of his disability even though it does not disclose the reason therefor. A party to the proceeding may not take issue with the surrogate as to the reason assigned by him for his disqualification. {People ex rel. Oakley v. Petty, 32 Hun 443.) Section 40. — Form : Surrogate's Certificate of Disqualifica- tion. Sukrogate's Court, County of In the Matter of Proving the "Will of deceased, ' i the surrogate of county, do hereby certify that I am named in the above mentioned will of deceased, as a legatee therein and the executor thereof, and am interested in the pro- bate of said will, and, by reason thereof, that I am disqualified from acting as surrogate in this particular matter. {If surrogate of another county is to ie designated Under section 3485, add :) And I further certify that there is no officer, mentioned in section 2484 of the Code of Civil Procedure, qualified to act in this 88 PART I : GENERAL PROCEDURE. Ch. 2, § 41. Disqualification established by order. matter; and I do hereby designate Hon the surro- gate of the adjoining county of to act in my place in this particular matter. XDate) XSignature). Section 41. —Disqualification Established by Order. Where a surrogate is precluded or disqualified from acting in a particular matter, that fact, and also the authority of the officer -^^^)r, in New York county, of the Supreme Court — to act in his place, also may be proved and are deemed conclusively estab- lished by an order of a justice of the Supreme Court of the judi- cial district embracing the county (§ 2487) ; and this order may be made or revoked in the same manner as in case of a vacancy or disability, and may, in the discretion of the justice making it, fequire the officer to give security for the discharge of his duties. (§ 2488; see sec 32 ante.) In actual practice, proof of a surrogate's disqualification usually is made by certificate or affidavit ; and it is apprehended that resort seldom need be made to a justice of th6 Sujireme Court, unless some question should arise with teference to the fact of disqualification. It is also provided in section 2487 : After such an order Is made, the surrogate shall not make the certificate specified in section 2485 of this act, and if such a certificate has teen thereto- fore filed, the powers and Jurisdiction of the surrogate therein designated as specified in that section, thenceforth cease. (.See secV 31 anfe) This is a queer provision inasmuch as the order can be made only when there is one of the officers mentioned in section 2484 who is qualified to act, but the surrogate of an adjoining county can be designated, as provided in section -2485, only when there is no such officer. Ch. 3, § 43. OF PROVISIONAL SURROGATE. 89 Form : Order establishing disqualification. Section 42. — Form : Order Establishing Disqualification. Supreme Court • County. In the Matter of the Application of for an Order establishing the Authority of the District Attorney of; County to Act as Surrogate ^ Order thereof, in the Matter of the Account- 1 ing of as Executor, etc., of deceased. J It appearing to my satisfaction by the petition of ■verified , 19 . . , that a special proceeding is now pending in the Surrogate's Court of county for the judicial settlement of the accounts of , as executor of the will of deceased, and that Hon , at present surrogate of the said county, was attorney and counsel for certain contestants in such proceeding prior to and until 19.., and, having become surrogate of said •Gounty , 19. . , is now disqualified and precluded from acting as such surrogate in this particular matter (or otherwise state facts showing diaquali- jkation) ; and that , Esq. , is the district attorney of said county, which has no separate surrogate ; and that no local officer has been provided for said county to discharge the duties of county judge and surro- gate, in case of his disability or of a vacancy, as provided by section 16 of article 6 of the Constitution; and that no provision haabeenimade by law for the discharge of the duties of said office of surrogate, in that contingency, otherwise than as provided by section 2484 of the Code of Civil Procedure. Now, therefore, on motion of Esq., attorney for said petitioner, and because I am satisfied that said Hon , the surrogate of said county, is disqualified and precluded from acting as such in the particular matter hereinbefore mentioned, 1 do HEREBY ORDER that , Esq. , Said district . attorney of county, be, and he hereby is, designated asth« officer em- powered to discharge the duties of the office of surrogate of said county in said special proceeding. (If security is required, add clause as in sec. 35 ante.) ' -Datedat , N. Y., 19.. , J. S. 0. Judicial District. 40 PART I : GENERAL PROCEDURE. CH. 3, §§ 43-4S. Provisions relating to the County of New York. — Provision as to Kings Co. Section 43.— Provisions Relating to the County of New York. ■* § 2486. Idem, in Nhw ^oek County. — In the county of New York the Supreme Court, at a special term thereof, on the presentation of proof of Its authority, as prescribed in the next section, must exercise ail the powers and jurisdiction of the Surrogate's Court, as follows : 1. Where the surrogate is precluded or disqualified from acting, with respect to a particular matter, it must exercise all the powers and jurisdiction of that^ court with respect to that matter. 2. Where the office of surrogate of the county is vacant, or the surrogate is disabled by reason of sickness, absence or lunacy it must exercise all the powers and jurisdiction of that court, until the vacancy is filled or the dis- ability ceases, as the case may be. (1895 ch. 946.) This section, as now amended, undoubtedly supersedes the sim- ilar provisions of the Consolidation Act (1882 cA. 410 §§ 1183- 1187.) As there are two surrogates in New York county (1892 chi 642) occasions for resort to tlie Supreme Court under this sec- tion rarely occur, since all the powers conferred by law upon the surrogate of the county of New York may be exercised by either of these surrogates, and any matter, wherein one of them is dis- qualified or precluded from acting, may be determined by the other. (§ 2504; see sec 53 post.) Section 44. — Proof of Authority in the County of New York. The authority of the Supreme Court in the county of New York must be proven hi precisely the same manner as the author- ity of an officer in any other county (§ 2487) ; and it is only em- powered to act " on the presentation of proof of this authority," as prescribed by section 2487, but thereupon it " must exercise fell the powers and jurisdiction of the Surrogate's Court." (§ 2486 ; see sec 43 ante.) Section 45.--Provision as to Kings County. These provisions in section 2484 (see sec 29 ante) relate to Kings county only : '^ In any proceeding in the Surrogate's Court of the county of Kings, before either of the officers authorized in this section t6 discharge the duties of the office of surrogate of such county tor the time being, if an issue is joined or a fcontest arises either on the facts or the law, such officer, in his discretion, may, ty order transfer such cause to the Supreme Court to be- heard and decided at a Special Term thereof, held in such county, which order shall be recorded in the surrogate's office. na ^ A certified copy of such order, together with the appropriate certificate or certificates of the authority of the officer to act as surrogate, shall be sufficient and conclusive evidence of the jurisdiction and authority of the Supreme Court '" After a%nal °6^rdeT or decree is made in the matter or causfe So transferred CH.a,§§46, 47. OP PROVISIONAL SURROGATES. 41 Proceedings transferred to Supreme Court: — To Surrogate's Court. to tbe Supreme Court, the court shall direct the papers to be returned and filed, and transcripts of all orders and decrees made therein to be recorded In the surrogate's office of such county ; and when so filed and recorded, they shall have the same effect as if they were filed and recorded in a case pending in the Surrogate's Court of such county. (See sec. 29 ante.) In Kings county there is a separate surrogate but neither a special surrogate nor a special county judge ; and this provision enables either the county judge or district attorney, after having been duly empowered to act as surrogate under section 2487, to transfer to the Supreme Court for trial any contested matter before him as acting surrogate. Section 46.— Proceedings Transferred to Supreme Court : How Regulated. ■^ I 2490. PnocEEDiNGS IN New Yoke and Kings Cocnties Regolated. — tn a special proceeding cognizable before a surrogate, taken in the Supreme Court as prescribed in this article, the seal of the court in which it is taken, must be used, where a seal is necessary. The special proceeding must be entitled in that court ; and the papers therein must be filed or recorded, as the case may be, and issues therein must be tried, as in an action brought in that court. The clerk of that court must sign each record, which is required to be signed by the surrogate or the clerk of the Surrogate's Court. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made by a judge of the court. (1895 ch. 946.) Although not in terms referring to a " cause " transferred to the Supreme Court under section 2484 relating to Kings county, these provisions doubtless apply to such a proceeding. It has been held that this section does not prevent a justice of the Supreme Court, vi^here atrial has been had at Special Term, from exercising the power of passing upon requests to find upon the settlement of a case, as conferred upon the surrogate by section 2545. (Matter of Chauncey, 32 Jlun 429.) S^tiori 47.— Proceedings Returned to Surrogate's Court. The Supreme Court may send back to the Surrogate's Court any matter which has been transferred to it : "^^^ S 2491. Idem ; Thansfek of Peoceedings to Soreogatb's Couht. — The court may, at any time, in its discretionj upon being satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the Surrogate's Court, -any matter then pending before it. Such an order operates to transfer the same accordingly. Immediately after such a transfer, or after the revocation of the order of the General Term, as prescribed in the last section but one, the surrogate must cause entries to Ire made in the proper book in his office, referring to all the papers filed, and orders entered, or other proceedings taken, in the Supreme Court ; and he may cause copies of any of the orders or papers to be made, and recorded or filed in bis office, at the expense of the county. (1895 ch. 946.) 42 PART I : GENERAL PROCEDURE. Ch. 2, § 48. Official designation of provisional Surrogate. Section 2487 was amended in 1887 by substituting " an order of a justice of the Supreme Court " for "an order of the General Term" and subsequently sections 2488 and 2489 also were amended accordingly (1889 ch. 495) ; but section 2491, although amended in 1895 in other respects, still refers to " the General Term." Section 2491 affects the counties of New York and Kings; and, as it would seem, it applies to Kings county only ajter revo- cation of the order designating, to act as surrogate, the county judge or district attorney who transferred to the Supreme Court the matter pending before it. In the county of New York the authority of the Supreme Court to act, as prescribed in section 2486, can only be super- seded by its own order, pursuant to this section 2491, transfer- . ring, to the Surrogate's Court, matters pending before it. In every other county the authority of a provisional surrogate, empowered to act pursuant to section 2484 by an order of a justice of the Supreme Court, can be superseded only by a revoca- tion of that order under section 2489. Section 48. — Official Designation of Provisional Surrogate, § 2483. SuniiOGATE AND Acting Soeeogate ; Theik Officiai, Designa- tions. — Where the county judge is also surrogate, he may be designated, In any paper or proceeding relating to the office of surrogate, as the surrogate of the county, without any addition referrinj to his office as county judge. A local officer elected, as prescribed in the Constitution, to discharge the duties of surrogate, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated, as the " special surrogate " of his county. Where an officer, other than the surrogate, acts as surrogate in a case pre- scribed by law;, be must be designated by his official title, with the addition of the words; "and acting surrogate." (1880 ch. 178.) As already noted (sec 25 ante) the official title of a person appointed by the board of supervisors to act as surrogate has not been fixed by statute ; but it seems proper to describe him as either " temporary surrogate " or " temporarily acting as surro- gate." In Dobice v. Munro (1 Bedf. 486, s. c. as Munro's Estate 15 Ahh^ Pr. 363), it was held, where a county judge acts as surrogate, that his signature, if affixed to a decree without ainy designation of office, may be amended by supplying the omission ; but in that case the caption of ihfe decree described the judge as " acting sur- rogate." Ch. 2, §§ 49-51. OF PROVISIONAL SURROGATES. 43 Compensation of Provisional Surrogate. — Also his General Autliority. Section 49.— Compensation of Provisional Surrogate. § 2493. Id. ; Compensation. — An officer, or a person appointed by the board of supervisors, who acts as surrogate o£ any county during a vacancy in the office, or in consequence of disability, as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal, pro rata, to the salary of the surrogate ; or, in a county where the county judge is also surrogate, to the salary of the county Judge. The amount of his com- pensation must be audited and paid, in like manner as the salary of the surro- gate, or of the county judge, as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or pre- cluded from acting, the supervisors of the county must allow him a just com- pensation for his services therein, to be audited and collected in the same manner. (1880 ch. 178.) It has been held that these provisions do not apply to a special surrogate whose compensation has been fixed by the board of supervisors pursuant to the statute creating his office. (People ex rel. Sholes v. Supervisors of Oneidtx County, 82 Hicn 105, 31 Supp. 63, 68 St. Rep. 362, 24 Civ. Pro. Rep. 152.) The same view seems to prevail with tlie Legislature which recently has amended a statute (1849 cA. 306) authorizing the election of local officers to discharge the duties of county judge and surrogate, in eight counties specified therein, by expressly providing for them the same compensation as that given to " an officer, or a person appointed by the board of supervisors " under section 2493. (1895 ch. 494.) Section 50. — Records to be kept by Provisional Surrogate. ■"* § 2494. Id. ; Acts, etc., Wheue and How Hecohded. — Where an act is done, or a proceeding is taken by, before, or by authority of, an officer, or a person appointed by the board of supervisors, temporarily acting as surrogate of any county, as prescribed in this article, the same must be recorded, or the proper minutes thereof must be entered, in the books of the Surrogate's Court, in like manner as if the same was done or taken by, before, or by authority of the surrogate of the county ; and the officer or person so acting, or the clerk of the Surrogate's Court, must sign the certificate of probate and any letters so issued, and must certify the record thereof in the book. (1880 eft. 178.) Section 51.— General Authority of Provisional Surrogate. An officer, duly empowered to discharge the duties of the office of surrogate as prescribed in Chapter 18 of the Code has all the authority of the surrogate with reference to the matters con- cerning which he is to act. It is provided by subdivision 7 of section 2514 that The word, " surrogate," where it is HSe^ in the text, or in a bond or under- taking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. (See sec. 1 ante.) 44 .PART I : GENERAL PROCEDURE. Ch. 2, § 51. General Authority of Provisional Surrogate. If he has been designated to discharge the duties of the office because of a vacancy or where the surrogate is disabled by reason of sickness, absence or lunacy, he may complete any unfinished business (§ 2481) ; but as provided in section 2489, After the order of appointment is revolsed, or tlie vacancy is filled, as the case may be, the unfinished business in any "proceedings taljen by virtue of the qrder or appointment, must be transferred to, and may be completed by the surrogate in the same manner and with like effect as where a new surrogate completes the unfloisheS business of his predecessor. (.See sec. 36 ante.) CHAPTER III. THE SURROGATE'S COURT. Section 52. Surrogate's Court: When Open and Where held. 53. Same Subject: In New York County. 54. Seal of Surrogate's Court. 55. Clerk of Surrogate's Court: Deputy. 56. Same Subject: Powers of Clerk. 57. Stenographers and other Officers for Surrogate's Court. 58. Qualifications and Duties of Stenographer. 59. Fees of Stenographer. 60. Testimony: How Authenticated and Preserved. 61. An Attorney is Officer of the Court. Section 52. — Surrogate's Court : When Open and Where Held. Each surrogate must hold, within his county, a Surrogate's Court. (§ 2472.) This is a court of record {■Judiciary Law § 2) and " is always open for the transaction of any business, within its powers and jurisdiction." (§ 2504.) Except in the county of New York, there are no stated terms in a Surrogate's Court and proceedings therein are continued from day to day. ( Western v. Romaine, 1 Brad. 37.) Even tlie absence of the sur- rogate or of the parties on an adjourned day does not abate a pro- ceeding or put the case out of court. ( Gilman v. Gilman, 1 Bedf. 354; aff'd 38 Barb. 364.) The Surrogate's Court usually is held at the office of the sur- rogate who is required to be there on each Monday — not a public holiday — except during the month of August "to execute the powers conferred and the duties imposed upon him." However, he is authorized to designate a day of the week, other than Mon- day, when he will attend at his ofBce, and to name a month, other than August, when he will be absent therefrom " during that year ;" and where the county judge is also surrogate he need not attend at his office on any day when the County Court is sitting. (§ 2505 ; see sec. 14 ante.) J' § 2506. When and Wheeb Couiit Held bt Countt Judge. — The Surrogate's Court, in a county where the county judge is also surrogate, may be held at the time and place at which the county court is held ; and, in that case, 45 46 PART I : GENERAL PROCEDURE. Ch. 3, §§ 53, 54. Same Subject: In New York County.— Seal of Surrogate's Court. the order of business of the county court, the court of sessions, and the Surro- gate's Court, is under the direction of the county judge. (1880 ch. 178.) As. the surrogate is required to " execute the duties of his office, at such other times and places within his county, as the public convenience requires" (§ 2505), he may hdd the Surro- gate's Court elsewhere within the county than at the court-house or the surrogate's office. Section 53. — Same Subject : In New York County." § 2504. SUBEOGATES' Codrt; When to be Open. — The Surrogates' Court is always open for the transaction of any business, within its powers and juris- diction. The surrogates of the eity and county of New Yorls, from time to time must appoint and may alter the times of holding terms of that court for the trial of probate proceedings and for the hearing of motions and other chamber business. They must prescribe the duration of such terms, and assign the surrogate to preside and attend at the terms so appointed. In case of the inability of a surrogate of that county to preside or attend, the other surrogate may preside or attend in his place. Two or more terms of the Surrogates' Court may be appointed to be held at the same time. The term of that court held at the chambers shall, dispose of all business except contested probate proceedings ; all contested probate proceedings shall be disposed of at the trial term. An appointment must be published in two newspapers published in the city of New York during or before the first week in January in each year ; except that the surrogates of that county may, by notice to he published in two newspapers in the city of New York for at least flye days, appoint the time for holding chambers and trial terms during the year eighteen hundred and ninety-three. All the powers conferred by law upon the surrogate of the city and county of New York m^ay be eSercised by either of the surrogates of the said city and county; and there shall be published in the ofiBcial law paper published in said county, upon Monday of every week, under the name of the surrogate making the several appointments, a full and true list of the names of all appraisers, transfer tax appraisers, special guardians, referees and temporary administrators, which either surrogate shall have designated or appointed during the preceding week, together with the names of the proceedings in which they were appointed and the dates of said appointments. (1899 eft. 605.) As originally enacted (1880 ch. 178) this section contained only the first" sentence. In New York county, by rule 1 of the Sur- I'bgate's Rules, a special motion calendar is called on each Tuesday and Friday except during the month of August ; but no calendar is called during that month. Section 54. — Seal of Surrogate's Court.' % 2507. Seal. — The seal of the surrogate of each county shall continue to be the seal of the Surrogate's Court of that county, and must be used as such by an officer v^ho discharges the duties of the surrogate. A description of each of such seals rbust be deposited and recorded in the office of the Secretary of State, unless it has already been done ; and must remain of record. (1909 oh. 65.) It is also provided in the Judiciary Law: § 28. Seal or Court of EECOB^-^the seal of each court of record In the CS. 3, § 55, 56. THE SURROGATE'S COURT. 47 Clerk of Surrogate''s Court: Deputy.— Same Subject: Powers of Clerk. State, now in use, shall continue to be the seal of the court in which It is in use. A description of each of such seals, must be deposited and recorded In the office of the Secretary of State, unless it has already been done ; and must remain of record. (1909 ch. 35.) Section 55. — Clerk of Surrogate's Court : Deputy. " By a written order filed and recorded in his ofBce, which he may in like manner revoke at pleasure, a surrogate may appoint a clerk of the Surrogate's Court " ; and, in any county containing a city of the second class, the surrogate may appoint also a deputy clerk of said court. Both are paid by the county ; and the board of supervisors or board of aldermen, as the case requires, must fix the compensation of each, lif either the clerk nor deputy clerk may " act as appraiser, as attorney or counsel, or as referee, or special guardian, in any matter before the surrogate." (§ 2509.) S 2511. SnEEOGATE Liable foe Cleek's Acts. — A surrogate hereafter elected or appointed, and the sureties in his official bond, are liable for any act of the clerk or deputy clerk of the Surrogates' Court in the discharge of his official duties, during the surrogate's term of office, as if the act was per- formed by the surrogate. The surrogate may take security from the clerk or deputy clerk, or either of them, to indemnify him against the liability created by this section. (1907 cTi. 209.) Section 56. — Same Subject : Powers of Clerk. '~^ § 2509. Cleek of Sueeogatb's Codet ; Deputy Cleek of Suhbogate's Codet; How Appointed; Theik Powees. — By a written order filed and re- corded in his office, which he may in like manner revoke at pleasure, a surro- gate may appoint a clerk of the Surrogate's Court, and in any county con- taining a city of the second class, and in the county of iMonroc, the surrogate may also appoint a deputy clerk of said court. Both said clerk and deputy clerk shall be paid by the county, and the board of supervisors or board of aldermen, as the ease requires, must fix the compensation of the clerk and deputy clerk so appointed. The clerk and deputy clerk so appointed may severally exercise, concurrently with the surrogate, the following powers of the surrogate : 1. He may certify and sign aS clerk of the court, or as deputy clerk of the court, as the case may he, any of the records of the court, including the certifi- cate specified in section twenty-six hundred and twenty-nine of this act, and the records and papers specified in subdivision nine of section twenty-four hundred and eighty-one of this act. 2. He may issue any mandate, td which a party is entitled as of course, either unconditionally or on the filing of any paper ; and may sign, as clerk of the court, or as deputy clerk of the court, as the case may be, and affix the seal of the court to any letters or mandate issued from the court. 3. He may certify in the manner prescribed by chapter ninth of this act, a copy of any paper, required or permitted by law to be filed or recorded in the surrogate's office. 4. He may adjourn to a definite time, not exceeding thirty days, any matter, when the surrogate is absent from his office, or unable, by reason of other engagements, to attend to ths same. 5. He may take the acknowledgment or proof of any instrument, to be used or filed in the court of which he is clerk or deputy clerk. Said deputy clerk shall also act as confidential clerk to the surrogate. 6. The clerk of the Surrogate's Court of each of the counties of Kings and New York may, with the approval of the surrogate or surrogates of his county, authorize or deputize one or more ol the other clerks, employed in the 48 ■ PART I : GENERAL PROCEDURE. Ch. 3, § 56. Same Subject: Powers of Clerk. surrogate's office of his county, to sign his name, and exercise such of the other powers conferred upon him hy this section, as he shall designate. The surrogate may prohibit the cleric and deputy clevis, or either of them, from exercising any powers specified in this section, but the prohibition does not aflEect the validity of any act of the clerk or deputy clerk done in disregard of the prohibition. The clerk or deputy clerk or other person employed in any capacity in a surrogate's office, shall not act as appraiser, as attorney or counsel, or as referee, or special guardian, iu any matter hefore the surro- gate. 7. The clerk of the Surrogate's Court, of each of the counties of this State shall Immediately upon the filing in the office of the surrogate of any decree or order of such court directing the deposit of money, either actually in the hands of some person or persons or thereafter arising trom the sale of real estate described in any such decree or order, with the county treasurer of his county, or in the case of the county of New York, with the chamberlain of the city of New York, or upon the filing iu the said surrogate's office of any treasurer's or chamberlain's receipt stating that a sum of money has been deposited with such treasurer or chamberlain, in accordance with a de- cree or order of any such Surrogate's Court, enter in a hook to be kept In his office for th£(t purpose, to he known as a court and trust fund register, the title of the proceeding, or the name of the estate in which such decree or order was made, together with a statement of the amount so deposited, or ordered to be deposited, if said decree or order contains the amount of same, and the name of the person or persons, if any, to whom said money Is ordered to be paid, and the date of the filing of the same or of sueli receipt as herein mentioned. (1909 ch. 65.) And in a probate proceeding the clerk may take the examina- tion of the witnesses to the will, in certain cases : ' § 2510. Additional Powers of Cleeks of Subhogate's Court. — The clerk of the Surrogate's Court, and in the county of Kings two other clerks to be designated by the surrogate, in addition to the powers enumerated in section twenty-five hundred and nine, may exercise, concurrently with the surrogate of the county the following powers of the surrogate : On the return of a cita- tion issued from such Surrogate's Court on a petition for the probate of a will, where no objection to the same is filed, or, where all the persons entitled to be cited, sign and verify the petition, or personally, or by attorney, appear on the probate thereof, cause the witnesses to the will to he examined before him. Such examination must be reduced to writing, and for such purpose, they are hereby authorized to administer and certify oaths and affirmations in such cases in the same manner and with the same effect as if administered and certified by the surrogate. (1906 ch. 95.) MoreoYer, the clerk is authorized to administer oaths, to take affidavits and the proof and acknowledgment of deeds and of all other instruments in writing, and to certify the same, with the like force and effect as if they were taken and certified by a county judge. (§ 2481 sub. 12 ; see sec "^2 post.) But the clerk of a Surrogate's Court has no powers except those expressly conferred upon him by statute ; and where any judicial determination is required before a mandate may issue the surrogate must act. Where a citation issues "as of course," it may be issued by the clerk of the Surrogate's Court {Matter of Ilurlburt, 43 Sun 311, 4 St. Bep. 354); but no mandate requiring the special direction Ch. 3, § 57. TPIE SURROGATE'S COURT. 49 Stenographers and other oflBcers for Surrogate's Court. of the surrogate, or being in his discretion, can be issued by the clerk. (Mauran v. Hawley, 2 Bern. 396.) Thus where letters of administration had been issued by a clerlr, who filled up a blank form previously signed by the surrogate, it was held that the letters were void because tlie surrogate did not act upon the petition. (Hoderigasv. East Rio. Sav. Inst. 76 ]SF. T. 316.) But the issuing of letters is a ministerial act, if done pursuant to an order of the surrogate ; for, in such case, the letters follow the judicial action of the surrogate and may be issued by the clerk. {Matter of Atwood, 10 Misc. 480, 32 Supp. 115.) It has been held that an original decree must be signed by the surrogate {Munro^s Estate, 15 Abb't Pr. 363); and the clerk can- not file an unsigned decree or otherwise make it valid. {McNaugh- ton V. Chave, 5 Ab¥t JST. C. 225.) Section 57. — Stenographers and other Officers for Surro- gate's Court . § 2512. Stenoghaphebs and CoDM Opficehs fob Subeogates' Codbts in New Yoek, Kings and Eeib CouNTtfis. — The surrogate ot each of the counties of New York ji««rl i (1000 ch. OD) . C/f/o cu. 7oir^ A similar provision, relating to the county of New York, is contained also in section 1193 of the Consolidation Act. (1882 ch. 410.) ~ § 2513. Stenogbaphers in Sueeogates' ConETS, Appgintmbn* and Com- pensation OF. — The surrogate of each county, except New York, Kings, Hamil- aj-ui/^ ton, Queens^^BiT Eichmon(^may, in his discretion, appoint, and at pleasure t*~i-C»^ ur remove, a stenographer for his court, who, except in Sullivan county, shall /v receive a salary to be fixed by such surrogate, not exceeding in counties having a population less than thirty thousand, eight hundred dollars per annum ; In counties having a population of thirty thousand and not more than fifty thousand, not exceeding one thousand dollars per annum, and in counties having a population exceeding fifty thousand, not exceeding twelve hundred dollars per annum, except that in counties in which are located cities of the second class, or in counties in which are located throe cities of the third class, such salary shall not exceed eighteen hundred dollars per annum ; and in any county wholly containing a City of the first class, such salaries shall not exceed two thousand dollars per anhflin. The population of the several counties shall be determined by the last preceding census. If a regular stenographer is appointed in, SulHVan' coataty, his salary shall be five hundred 50 PART I : GENERAL PROCEDURE, Ch. 3, § 58. Qualifications and duties of Stenographer. dollars per annum. The board of supervisors shall provide for the payment of sudh salary in the same manner as other county expenses are paid. Such stenographer shall deliver to the surrogate of the county a full copy of all the minutes talsen by him ; and on the receipt of his fees, not exceeding three cents per folio, a lilsie copy to the party, or each of the parties, to the proceeding in which the minutes were talien, except that in the counties of Onondaga and Monroe such fees shall not exceed six cents per folio. When not actually engaged in the discharge of his duties as stenographer, he shall perform such clerical duties in connection with the Surrogate's Court as the surrogate directs. In counties wherein the surrogate is also county Judge, the stenographer so appointed shall be the stenographer of the County Court, and shall perform the duties pertaining to a stenographer of the County Court without additional compensation. In counties where, for any cause, a regular stenographer for his court has not been appointed, as provided by this section, the surrogate may, in individual proceedings requiring the services of a stenographer, appoint a stenographer who shall be paid a reasonable compensation, certified by the surrogate in every case in which he taijes notes of testimony, from the estate g or matter in which such services are rendered. (18«8 eJi. 2?4-) \I1 ( O fru. T'nT It has been held that the stenographer is not a "person employed in any capacity in a surrogate's ofBce" so as to be within the prohibition of section 2509 forbidding such a person to act " as appraiser, as attorney or counsel, or as referee, or special guardian, in any matter before the surrogate " {Benedict V. Cooper, 3 Dem. 362, 2 Hoio. Pr. JV. S. 38) ; but this case arose in New York county and the decision was influenced by the pro- visions ot former Code section 90 {Judiciary Law, § 251), having special reference to that county, although it was also the opinion of Surrogate Rollins that the stenographer does not have such a relation to the Surrogate's Court or office as to bring him within the scope of the prohibition. *' § 2513a. INTEHPEETERS IN Sueeogate's Codet OP KiNGS ConiTTT. — The sur- rogate of icings county must from time to time appoint and may at pleasure remove an interpreter to be attached to the Surrogate's Court of said county. Such interpreter shall receive a salary of eighteen hundred dollars per annum to be paid by the comptroller of the city of New Yorlj, in monthly Instalments and shall, before entering upon hi.s duties, file in the office of the clerk of the county of Kings the constitutional oath of office in which there shall also be incorporated, language to the effect that he will fully and correctly interpret and translate each question propounded through him to a witness and each answer thereto in said courts. "The compensation for the above Interpreter to be taken out of the amount' appropriated for the support of the said Surro- gate's Court, or from any other contingent city fund. (1009 ch. 65.) Section 58. — Qualifications and Duties of Stenographer. The stenographer is an officer of the Surrogate's Court, and, before entering upon the discharge of his duties, he must sub- scribe the constitutional oath of office, and file it in the office of the clerk of the court. He must be skilled in the stenographic art ; and the original stenographic notes taken by him are part of the proceedings in the cause. He is forbidden to be interested Ch. 3, § 58. THE SURROGATE'S COURT. 51 Qualifications and duties of Stenographer. directly or indirectly in the performance of any contract, work or business relating to the preparation or printing of any case, or of any case and exceptions or other papers on appeal, or of any briefs or points of counsel in any case in any court of this State ; and if he shall be so interested in any such work of preparation or printing, unless the same shall be devolved upon him by law, he forfeits his office. {Judiciary Law §§ 290-294.) \ % 2541. Duty of Stbnogeapheh. — The stenographer of a Surrogate's Court must, under the direction of the surrogate, talie full stenographic notes of all proceedings, in which oral proofs are given, except where the surrogate otherwise directs. The testimony must be legibly written out at length by him, from his notes ; and the minutes thereof, as so written out, must, after being authenticated, as prescribed in the next section, be filed in the surrogate's office. (1880 ch. 178.) This section, however, seems to be modified now by the following provisions of the Judiciary Law : § 295. Complete Stenogfj-phic Notes to be Taken. — Every stenographer specified in this chapter or the Code of Civil Procedure must take full steno- graphic notes of the testimony and of all other proceedings in each cause tried or heard. • ♦ * (1909 eft. 35.) And it is doubtful whether, under the present legislation, it is permissible for the surrogate to otherwise direct. The following provision of the Judiciary Law, taken from former Code section 83, also applies to the Surrogate's Court : § 14. CouET OR Judge may Direct the Filinq of Original Stenographic MiNUTES WITH Clerk.— The court or a judge thereof may, in its or his discretion, upon or with- out an application for that purpose make an order directing the stenographer to file with the clerk, fortbwitte or within a specified time, the original stenographic notes taken upOff a' tri'al'or hisarfng. (1909 eft. S3.) Except as modified by section 2541, the general provisions of this section apply to the stenographer of a Surrogate's Court ; and it is also his duty to " take' complete stenographic notes of each ruling or decision " of the surrogate, " together with each and every exception taken " thereto, and after such a ruling or decision has been made he may not alter or amend it " without the consent of the party excepting thereto," He is required also. Upon payment of the fees allowed by law, to furnish a certified transcript of the whole, or any part of his minutes in any case reported by him to any party to the proceeding requiring it. (See Judiciaty Law, §§ 295, 296, 301.) Italso is provided by section 796 —made" applicable to the Surrogate's Court by section 2538— that the" frahscribed minutes of a stenographer taken in any special proce^diiig must be written or typewritten on paper, ten 53 PART I : GENERAL PROCEDURE. Ch. 3, § 59. Fees of Stenographer. and one-half inches by eight inches, and bound on the edge of the greatest length. Section 59.— Fees of Stenographer. Formerly each stenographer of a Surrogate's Court was per- mitted by section 3311 to charge ten cents a folio for a copy fully written out from his stenographic notes of the testimony taken in a special proceeding; but by recent amendments to section 2513 — not applicable, however, to the counties of New York, Kings, Hamilton, Queens or Richmond — he is now required^ " on the receipt of his fees, not exceeding three cents per folio," to deliver a full copy of all minutes taken by him to any party to the proceeding wherein such minutes were taken, " except that in the counties of Onondaga and Monroe, such fees shall not exceed six cents per folio." Unless special provision otherwise is made by statute the stenographer is entitled under section 3311 • • * for the copy of the testimony required to he made in any pi-oce6ding for the record of the Surrogate's Court of either of the counties of New Yorli or Kings, ten cents ; and the surrogate may order that the fees for such record copy he paid out of the estate to which the proceeding relates. (1895 ch. 946.) The stenographer may be punished for contempt where he wrongfully refuses to deliver a copy of his minutes unless paid therefor in excess of these statutory rates ( Cavanagh v. O'N'eill, 20 Misc. 233, 45 Supp. 789); and it has been held that, as the compensation of the stenographer is fixed by statUtej an agree- ment to pay a greater rate for furnishing copies more expedi- tiously than otherwise ^vould be done cannot be upheld. {Mc- Carthy v. Bonynge, 12 JDaly 356.) Although a stenographer cannot require an attorney to pay for a copy of the minutes, in advance of his transcribing them ( Wright v. Nostrand, 58 How. Pr. 184), he may retain his notes until paid therefor ; but it has been held that if he gives his notes to a referee, to be used in preparing the report, he cannot limit the effect of such surrender and the referee may file them with his report although the fees have not been paid. {Pope v. Peraiitt, 22 Hun 468.) In the absence of a specific agreement imposing a personal liability, an attorney for a party to a special proceeding cannot fee held responsible for the stenographer's services {Bonynge V. Mdd 81 N". T. 159) ; and where the stenographer furnishes a /' ' i^: Ur ,_ t f Ch. 3, §§ 60, 61. THE SURROGATE'S COURT. 53 Testimony : How authenticated and preserved. — Attorney : Officer of the court. copy of the testimony to counsel upon a trial he cannot recover his fees therefor from such counsel unless the latter has hound himself for the payment. {Bonynge'V, Waterbunj, 12 ITun 534; Sheridan v. Genet, 12 Sun 660.) Section 60. — Testimony : How Authenticated and Pre- served. Where the stenographer of a Surrogate's Court has taken sten- ographic notes, in a special proceeding wherein oral proofs have heen given, the testimony is required to be written out legibly by him from his notes, and, as so written out, to be filed in the surro- gate's office (§ 2541) after having been first duly authenticated. E § 2542. How Mindtes of Testimony Authenticated. — The minutes of testi- mony, written out as prescribed in the last section, or taken by the surrogate, or under his direction, while the witness is testifying, must, before being filed, be authenticated by the signature of the stenographer, referee, the surro- gate or the clerls of the Surrogate's Court, as the case may be, to the effect that they are correct. (1881 ch. 535.) The original stenographic notes are part of the proceedings (^Judiciary Law § 292), and, unless written out and filed, they must be carefully preserved by the stenographer — or by his suc- cessor in office — for two years after the trial or hearing ; but thereafter he may destroy them. And he need not write them out unless so directed by the surrogate or by a person entitled by law to a copy of them. {Judiciary Law, §§ 298, 299, 302.) In the counties of New York and King.s, and in each other county where the supervisors so direct, the testimony written out by the stenographer must be bound, at the expense of the county, in convenient volumes endorsed " Stenographic Minutes." (§ 2543; see sec- 19 ante^ Section 61. — An Attorney is Officer of the: Court. « An attorney duly admitted to practice in all the courts of record of the State is an attorney of the Surrogate's Court, and his- functions as an officer" of that court are quite as important to the community and to his clients as the services he may perform ins any other court." {Matter of Regan, 167 N. Y. 338, 343.) Tn'the Surrogate's Court a party of full age, unless he has been judicially declared to be incompetent to manage his affairs, may prosecute -or defend a special proceeding by an attorney regularly admitted to practice in the courts of record ; and « the appearance ©f a party a^amsJ whom a citation has been issued, has the same 54 PART I : GENERAL PROCEDURE. Cbt. 3. § 61. An attorney is officer of the court. effect as the appearance of a defendant in an action brought in the Supreme Court." (§ 2528.) When a pavty has appeared thus all notices or other papers, required to be served in the proceed- ing, must be served upon his attorney. (§§ 799 tfe 2538.) The General Rules of Practice are applicable to the Surrogate's Court {Judiciary Law, § 94; Matter of Smith, 111 App. Din. 23, <. c. as Matter of Bender'' s Will, 97 Supip. 171) ; and thereby it is provided : ROLB 10. Change of Attoenbys. — An attorney may be changed by consent of the party and his attorney, or upon application of the client upon cause shown and upon such terms as shall he just, by the order of the court or a judge thereof, and not otherwise. Thus the Surrogate's Court has ample authority to direct a substitution of attorneys, in any special proceeding pending there- in, upon such terms as to compensation for professional service of the retiring attorney as shall be just ( Chatfield v. Heiolett, 2 Dem. 191) ; and its power to protect the lien of an attorney has been assimilated to the power exercised in that respect by the Supreme Court, and is quite adequate. (Judiciary Law, § 475 ; Matter of Regan, IQl N. Y! 338 ; Matter of Mtzsimons, 174c JV. T. 15 ; Matter of Smith, 111 App. Div. 23, s. c. as Matter of Bender's Will, 97 Supp. 171.) Indeed the Court of Appeals recently has held, where an attorney by proceedings in the Surrogate's Court had compelled payment of a trust fund income given for the sup- port and education of the beneficiary and his family, that he had a lien thereon, for the reasonable value of his services, which is enforceable by the Surrogate's Court. {Matter of Williams, 187 m T. 286.) In case an attorney has a lien upon an estate for services rendered to one executor, it is not lost by a transfer of the estate to a co-executor so long as the estate is still in court and has not been finally administered {Matter of Crouch, 41 Misc. 349, 84 Supp. 936); but the Surrogate's Court has no jurisdiction to ascertain or enforce the common law lien, of a former attorney for executors or administrators, upon their books and papers in his possession except, perhaps, as an incident to the substitution of attorneys in a pending proceeding. {Matter of Robinson, 59 Misc. 323, 112 Supp. 280; see sec -IZJ post.) CHAPTER IV. JURISDICTION OF THE COURT. SECTION 62. Distinction between the Surrogate and tb? Sijrrogate'a Court. 63. Of the Surrogate's Court. 64. Jurisdiction: How Obtained. 65. General Jurisdiction. 66. Limited Jurisdiction. 67. Limited Jurisdiction: No Equity Powers. 68. Same Subject: Illustrative Cases. 69. Limited Jurisdiction: Implied Authority. 70. Same Subject: Illustrative Cases. 71. Same Subject: Authority to Ascertain Marriage Relation, 72. Incidental Powers of the Surrogate. 73. Surrogate's Power to Enjoin Executor, etc. 74. Surrogate's Power to Require Executor, etc., to Perform Statutory Duty. 75. Vacating Orders and Decrees, etc.: Granting New Trials. 76. Decree without Jurisdiction, Vacated by Order. 77. Power to Punish for Contempt. 78. Power of Surrogate to Complete Unfinished Business of Predecessor. 79. Common Law Jurisdiction and Incidental Powers. 80. Exclusive Jurisdiction with respect to Decedents' Estates. 81. Residence Equivalent to Domicile. 83. Jurisdiction : When Determined by Location of Property. 83. Concurrent Jurisdiction: When it Becomes Exclusive. 84. Personal Property: Assets. 85. Jurisdiction Affected by Locality of Debts. 86. Jurisdiction in new or Altered County. 87. Presumption of Jurisdiction. 88. Same Subject: Rule of Evidence. 89. Jurisdiction not Lost by Defect of Record: Amendments. 90. Question of Jurisdiction to be Determined by Surrogate. 91. Writ of Prohibition against Surrogate's Court: Mandamus. Section 62. — Distinction between the Surrogate and the Surrogate's Court. No distinction between the surrogate and the Surrogate's Court seems to be made by the Code — owing, no doubt, to the piecemeal method of its making. The Surrogate's Court was not a court of record before the adoption of this prolific breeder of uncertainties 55 56 PART I : GENERAL PROCEDURE. Ch. 4, § 63. Of the Surrogate's Court. in legal procedure ; and, when its first thirteen chapters were enacted, the Surrogate's Court was designated in it as " a court not of record " (1876 ch. 448 § 3) and Chapter 18, relating to Surrogates' Courts, had been framed with reference to this classi- fication. Afterwards by the amendments of 1877 {ch. 416 § 1) "a Surrogate's Court in each county" was made a court of record {see Judiciary Law § 2) ; but, when Chapter 18 subsequently was enacted (1880 ch. 178), most of its provisions were retained as originally drafted. So it happens that this legislation, with refer- ence to the surrogate and the Surrogate's Court, is altogether heterogeneous and filled with incongruities — the volume and per- plexity whereof constantly, for thirty years, have been increased by amendments. The powers and jurisdiction of the surrogate and of his court are so blended as to be almost identical ; and ap- parently a surrogate is always in court when, anywhere within his county, he is exercising the powers or discharging the duties conferred by law either upon him or upon his court. Ajj^< v ' '^ ^ f"''^^ Section 63. — Of the Surrogate's Court. The Surrogate's Court is a tribunal, of peculiar and limited jurisdiction, which can exercise only the authority conferred upon it by statute together with such incidental powers as are essential to the proper administration of justice in the cases to which its jurisdiction extends {Sipperly v. Baucus, 24 iVI JT 46; Stihoeliv. Carpenter, b9 If. Y 414 ; Bevan v. Cooper, 72 JV. T. 317) ; but unless warrant for the jurisdiction assumed by it in any matter can be found in the statute, either expressly or by implication, its proceedings are void. (liiffffs v. Cragg, 89 iV: r: 479.) Plowever, the mere fact that the jurisdiction of this important court of record is thus limited, in no wiss detracts from its consequence or dignity : the Court of Appeals itself— our court of last resort- also is a tribunal of exceedingly circumscribed jurisdiction which Inay be yet further restricted by the Legislature. ( Cons. art. 6 § 9 ; Batterman v. Finn, ^0 JST. Y. 840 ; Delaney v. Brett, 51 N. Y. 78, 81; Qrisslery. Fowler, hb.lSr. 7:675; Hewlett i-. 2ilmer,l(iZJSr. Y. 156, 164.) Originally, the Surrogate's Court was not a Constitu- tional court but was created by the Legislature {see Matter of Thompson, 184 N. Y. 36, 43) ; and, although it has been "con- tinued " by the revised Constitution, its jurisdiction and powers are not defined by that instrument but must be found in the statu- tory law, (Cons. art. 6 § 15 ; Matter of Bolton, 159 N. Y. 129.) Ch. 4, § 64. JURISDICTION OP THE COURT. 57 Jurisdiction: How Obtained. However, the full authority of this court not always is given in express words but sometimes may be inferred from the general language of the statute ; and, if necessary to attain the object fairly within the purview of the statute or to accomplish the just and useful exercise of the powers expressly given, other powers may be implied. (Matter of Verplanck, Ql R. Y. 439 ; Garlock v. Vandevort, 128 I^. T. 374 ; Matter of Wischmann, 80 App. Div. 520, 80 Sicpp. 789 ; Dubois v. Sands, 43 Barb. 412.) Indeed, in so far as may be necessary to discharge the duties and functions conferred by statute and to make proper orders and decrees in matters over which its jurisdiction extends, this court has all the powers, legal or equitable, requisite to accomplish the result al- though it has no general jurisdiction either legal or equitable. {Matter of United States Trust Co., 175 IST. Y. 304.) To the extent that the Surrogate's Court is given jurisdiction it acts judicially. Its judicial actioa is, of course, subject to the limita- tions imposed by statute ; yet when it is sought to divest this court of all discretion in a matter within its peculiar jurisdiction the language of the statute, to bear such a construction, must be incapable of any other interpretation. (Matter of Wagner, 119 If. Y. 28.) Where its jurisdiction exists, the orders and decrees of the Surrogate's Court are conclusive until they have been re- voked, or reversed on appeal. (0^ Connor v. Suggins, Hi JST. Y. 511.) Section 64. — Jxuisdiction : How Obtained. " The Surrogate's Court obtains jurisdiction in every case, by the existence of the jurisdictional facta prescribed by statute, and by the citation or appearance of the necessary parties." (§ 2474.) " Jurisdiction, once duly exercised over any matter, by a Surro- gate's Court, excludes the subsequent exercise of jurisdiction by another Surrogate's Court, over the same matter, and all its inci- dents, except as otherwise specially prescribed by law." (§ 2475.) A special proceeding in a Surrogate's Court usually is " com- menced by the service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act, which may be done before actual service of the citation." (§ 2516.) The appearance of an adult party is equivalent to service of the citation ; and he may waive such, service. (§ 2528.^. 58 PART I : GENERAL PROCEDURE. Ch. 4, §§ 65, 66. General Jurisdiction. — Limited Jurisdiction. Section 65. — General Jurisdiction. § 2472.. General Juhisdiction or Sobhogate's Court. — Bach surrogate must hold, within his county, a court, which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision o£ law, jurisdic- tion, as follows : 1. To take the proof of wills ; to admit wills to prohate ; to revoke the probate thereof; and to take and revoke probate of heirship. 2. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a person whose letters have been re- voked. 3. To direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees, to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. 4. To enforce the payment of debts and legacies ; the distribution oi the estates of decedents ; and the payment or deliveiy, by executors, administra- tors, and testamentary trustees, of money or other property in their posses- sion, belonging to the estate. 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. 6. To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. 7. To appoint and remove guardians for infants ; to compel the payment and delivery by them - of money or other property belonging to their wards ; and, in the cases specially prescribed by law, to direct and control their con- duct, and settle their accounts. This jurisdiction must he exercised in the cases, and in the manner, pre- scribed by statute. (1880 ch. 178.) 8. To settle the accounts o^ a father, mother or other relative having the rights, powers and duties of a guardian in socage, and to compel the payment and delivery of money or other property belonging to the ward. (Added. 1903 ch. 407.) The Tax Law contains the following provision in relation- tC~ taxable transfers : § 228. Jurisdiction of the SonROGATE.^-The Surrogate's Court of every county of the State having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent whose property is chargeable with any tax under this article, or to appoint a trustee of such estate or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and determine all questions arising under the provisions of this article, and to do any act in relation thereto authorized by law to be done by a surro- gate in other matters or proceedings coming within his jurisdiction ; and if : two or more Surrogates' Courts shall be entitled to exercise any such juris- diction, the surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every^^ther surrogate. » « • (1909 ch, 62.) By the Domestic Relations Law jurisdiction is given to the Surrogate's Court over proceedings for the adoption of infants. (1909 ch. 19 §§ 110-118.) These provisions seem to cover all matters with respect to which general jurisdiction has been conferred upon the Surro- gate's Court; and each subject will be considered hereinafter separately. Section 66. — Limited Jurisdiction. Wherever a question arises as to the power or authority of the Su]:;rogate's, Court, or of the surrogate acting as a judicial oflBcer Ch. 4. § 67. JURISDICTION OF THE COURT. 59 Limited Jurisdiction : No Equity Powers. out of court, its appropriate answer is this: If the power or authority has not been conferred by statute, either expressly or by necessary implication, its exercise is unlawful. Although it is provided in section 2472 that the jurisdiction thereby conferred " must be exercised in the cases, and in the manner, prescribed by statute," yet it is settled that this limita- tion does not confine the exercise of such jurisdiction to those acts only which are authorized expressly, but is subject to this general principle governing the construction of powers: An authority conferred for a particular purpose carries with it by implication such incidental powers as are needful for the complete execution of the power expressly granted, n3.yland v. Baxter, 98 iVi Yi 610.) Thus iiKthe early case of t^awwfw \/l>i(ryea(iiJ^^JY7^^ it fr^.Jr J^ was held that the surrogate had incidental power to require a )' guardian of an^nf ap-t to pay over any balance which might be ^ ''^ J "■ }} foand in his ha,B8^upon an accounting, although the statute did , ./^ not expr^l/^conferWjh authority but only empowered the sur- ]'^' ^ '^ ro^ie-to direct and cobtrol the conduct of such guardians and "to s ettle their accounts as provided by law." Moreover, the surrogate specifically is empowered, in court or out of court, as the case requires, "to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred." (§ 2481 sub. 11 ; see sec ^2 post.) Section 67. — Limited Jurisdiction : No Equity Powers. The Surrogate's Court does not have the general powers of a court of equity. {Matter of Bolton, 159 JST. Y. 129; Matter of Thompson, 184 N". Y. 36.) So where upon an accounting the* same distributive share is claimed by two persons — one by origi- ^ '1 nal title and the other by written assignment — the Surrogate's I Court cannot settle the question or set aside the assignment/ {Matter of Randall, 152 N. Y: 508 ; Matter of CooTc, 68 Hun. 280 ; 22 Supp. 969, 52 St. Rep. 382), nor can it, on the ground of fraud, annul a release executed by persons interested in an estate ; but such relief must be sought in a court having general equity juris- diction. {Matter of Wagner, 119 N. Y; 28 ; Sanders v. Soutter, 126 JSr. Y. 193 ; Matter of Pruyn, 141 N. Y. 544.) It has been held, however, that the Surrogate's Court may determine whether such a release really has been executed or is a forgery. {Matter of Hamilton, 76 Hun. 200, 27 Supp. 813, 57. St. Rep. 810.) ■rWHUUU^-i V I '/ 'f V 60 PART I : GENERAL PROCEDURE. Ch. 4, § 67. Limited Jurisdiction : No Equity Powers. It has been held also that the Surrogate's Court has no juris- diction to set off a judgment belonging to the estate against a judgment presented as a claim (StibveU v. Carpenter, t>9 JV. Y. 414) ; nor to determine whether a legacy is a charge upon real property {Bevan v. Cooper, 12 JST. Y. 317) ; nor to declare a trust and enforce it {Matter of Monroe, 142 iV; Y. 484) ; nor to require 'an accounting by a special guardian, appointed in a proceeding for the sale of an infant's real estate {Long v. Long, 142 N. Y. 545) ; nor to construe a will of real property — except so far as may be necessary for the performance of some duty laid upon it by statute. ( WasKbon v. Cope, 144 N. Y. 287.) But where a testator undertakes to create a trust, in which real and per- sonal property are blended, this court has jurisdiction to con- strue such provisions and pass upon the trust in so far as it affects \h& personal property {Matter of Trotter, 182 N. Y. 465) ; and, whenever needful so as to distribute an estate upon an account- ing, it may resolve all questions of interpretation albeit a dispo- sition of the proceeds of real property is involved. {Purdy v. Hayt, 92 iVIF: 446 ; Matter of French, 52 Hun, 303, 5 Supp. 249, 23 St. Rep. 450 ; Matter of Keogh, 47 Misc. 37, 95 ^pp. 191.) Although the Surrogate's Court has power to enforce the payment of legacies yet, in case an overpayment has been made to a legatee, it cannot render an affirmative judgment for the excess in favor of the executor or administrator and against the legatee {Matter of VhderhiU, 117 JST. Y. 471; Matter of Lang, 144 N'. Y. 275); and, while it may direct payment of a legacy in anticipation of a final accounting and distribution of the estate (§ 2722), where this can be done without prejudice to the rights of other parties interested {Oilman v. Oilman, 63 iV; K 41), yet this is true only where the legacy is undisputed, but, if there he a dispute concern- ing the legacy or it is claimed by several persons, the Surrogate's Court cannot adjust such conflicting interests or claims until the final accounting. {Biggs v. Cragg, 89 iVI r: 479.) Indeed, the Surrogate's Court has no jurisdiction to determine the validity of a disputed demand against the estate which has been rejected by an executor or administrator ( lucker v. Tucker, 4 Keyes 136 ; McNalty v. Hurd, 12 N. Y. 518), "unless a written consent shall be filed by the respective parties with the surrogate that said claim may be heard and determined by him upon the judicial settlement of the accounts of said executor or administrator." Ch. 4, § 67. JURISDICTION OF THE COURT. 61 Limited Jurisdiction: No Equity Powers. (§ 1822.) However, if the claim be a judgment against the de- cedent the Surrogate's Court may decree its payment— even though it be disputed or rejected by the executors or administra- tors — and, upon the application for such decree, may ascertain and fix the amount due thereon; but it cannot determine whether there has been an accord and satisfaction, or whether the estate is entitled in equity to a release or discharge, either in whole or in part, from the judgment {McNulty v. Hurd, 72 iV! F. 518)"; nor has it power to pass upon the validity of a demand belonging to the estate against another person even when he is a legatee and the executor is seeking to have such debt adjudged a par- tial satisfaction of the legacy {Matter of Cokoell, 15 St. Rep. 742 ; VanValkenburg v. Lasher, 53 Hun 594, 6 Supp. 775, 25 St. Rep. 291), although such a claim is an equitable lien on the legacy. (Smith V. Kearney, 2 Barh. Ch. 533 ; Matter of Bogart, 28 Hun 466 ; Rogers v. Murdoch, 45 Hun 30, 9 St. Rep. 660.) It has been held also that the Surrogate's Court may not in- quire into the validity of a transfer of property made by the testator to the person who afterwards was appointed his executor, nor determine whether such transfer is fraudulent as to creditors and require the executor to account for what he has received thereon. {Matter of Kellogg, 39 Hun 275, aff'd 104 JST. P: 648 ; Matter of Bunting, 98 App. Div. 122, 90 Supp. 786.) But where an accounting executor held assignments of mortgages formerly belonging to his testator, and a contestant alleged that they had bfeen executed and' delivered to the executor solely to assist him in the distribution of the estate after the testator's death, it was held that the surrogate had jurisdiction to determine the question ; and this conclusion was reached upon the theory that the contest- ant was not attempting to set aside the assignments but only to make the executor account for property belonging to the testator at the time of his death and constituting assets of the estate. {Matter of Ammarell, 38 Misc. 399, 77 Supp.m2.) In Matter of Thompson (184 JST. T. M) Judge Vakit, writing for the court, discussed at length the Surrogate's Court and the tendency of recent legislation to enlarge its jurisdiction ; but it was held that it had not yet been given the broad powers of a court of equity necessary to enforce a creditor's lien upon the proceeds qf an insurance policy on the life of a husband, where tbe wife was named as a beneficiary and the annual premium was 63 PART I : GENERAL PROCEDURE. Ch. 4, § 68. Same Subject: Illustrative Cases. in excess of $500, or to determine, in a proceeding by a creditor to compel the wife as executrix to account, whether, as between her individually and the creditors of her deceased husband, any part of the proceeds of such policy was chargeable with a lien in favor of those creditors under the Domestic Relations Law. (See 1909 ch. 19 § 52.) Section 68. — Same Subject : Illustrative Cases. It has been held that the Surrogate's Court has no power to inquire into or settle the rights of heirs to real property or its proceeds, or to divide such proceeds according to the Statute of Descents or otherwise (Shumway v. Coo2:)er, 16 Barh. 556 ; Matter of Spears, 89 Hun 49, 35 Siipp. 35, 69 St. Rep. 428 ; Matter of Wbodworth, 5 Dem. 156, 33 St. Hep. 227) unless the executor has executed a power of sale and actually has converted the real property into money, in Avhich case the court has such power. (Matter of McKay, 75 App. Div. 78, 77 Siipp. 845.) It also has been held that the Surrogate's Court has no jurisdiction to settle a controversy over an intestate's real property arising out of the acts of his administrators, who have assumed possession of, and exercised dominion over, it (Matter of Kane, 38 ilftsc. 276, 77 - Supp. 874) ; nor to compel an executor to account for rents and profits collected by him from real property devised by the tes- tator {Calyer v. Calyer, 4 Redf. 305; Matter of Rlovj, 2 Con. 360, 11 Supp. 198, 32 St. Rep. 290) ; nor to put a purchaser into pos- session of land which had been sold under a decree of the Surro- gate Court {Matter of Oeorgi, 37 Misc. 242, 75 Supp. 256) ; nor to direct the satisfaction of a mortgage upon real property of an infant whose estate is subject to its jurisdiction ( CromwellY. Kirk, 1 Dem. 599) ; nor, upon an application for probate of a will, to adjudicate the validity, construction or effect of a testamentary disposition of real property (Price v. Foucher, 3 Dem. 339 ; and see § 2624) ; nor, upon the settlement of an estate, to determine whether an assignment of a legacy, good on its face, is invalid in law against the legatee {Matter of Randall, 152 ISF. Y. 508 ; Matter of Grant, 37 Misc. 151, s. c. as Matter of Boyces Estate, 74 Supp. 958) ; nor to determine whether a bequest to the head of a char- itable institution should be declared invalid as an evasion of a statute under which a similar bequest to the institution itself would be void {Matter ofMxdlen,1h Misc. 253, 55 Supp. 432) ; nor Ch. 4, § 69. JURISDICTION OF THE COURT. 63 Limited Jurisdiction : Implied Authority. to determine whether a share in the estate belonging to a dis- tributee should be paid over to him or to one claiming it as his creditor {Matter of Redfield, 31 Hun 344, 25 Su2:ip. 3 ; flatter of Arkenhurgh, 88 App. Div. 473, 56 Supp. 523 ; Matter of Stephens, 64 Supp. 990) ; nor, in any proceeding, to pass upon or determine the question of title to property as between a claimant and the representative of the decedent's estate (Matter of Walker, 136 If. Y. 20) ; nor to control the conduct of administrators or ex- ecutors concerning property to which they have no right in their representative capacity {Calyer v. Calyer, A Redf. 305); nor to settle any disputed claims against an infant's estate for moneys or services alleged to have been expended or rendered in caring for the infant's property {Matter of Stoehr^s Estate, 23 Supp. 280, 51 St. Rep. 560) ; nor to adjudge that the next of kin, to whom the personal estate has been distributed by agreement, shall pay debts incurred by the administrators ; nor to settle or readjust the affairs of the next of kin, or to compel them to restore to the administrator assets received under such an agreement ; nor to require them to pay any such assets upon the debts and liabil- ities found to be existing against the estate (Matter of lieef, 43 Sun 98, 6 St. Rep. 587) ; nor to decree payment of a claim against the estate which has been presented to the executor or adminis- trator and rejected by him. (Matter of Callahan, 152 iV; Yi 320.) But where a creditor petitions for payment of his claim, even though, as provided by section 2722, the executor or adminis- trator files a verified answer denying the validity or existence of it, the Surrogate's Court, although prohibited from adjudicating upon a disputed claim, has jurisdiction to determine whether the claim actually has been rejected or allowed ; and where^ upon competent and sufficient evidence, the court decides that it has been allowed by the executor or administrator, its payment may be directed. (Matter of Miles, 110 JST. Y.lh; Matter of Doig, 125 App. JDiv. 746, 110 Supp. 93.) Section 69 Limited Jurisdiction : Implied Authority. Sometimes it is necessary for the Surrogate's Court to use powers, not expressly given, in order fully to exercise the juris- diction which actually has been conferred by statute ; and in such cases the requisite authority is deemed to have been granted by irvplico-tion. (Myland v. Baxter, 98 iVI y; 610.) Indeed, this is 64 PART I : GENERAL PROCEDURE. Ch. 4, § 69. Limited Jurisdiction : Implied Autliority. recognized in section 2481 wliich expressly empowers the surro- gate, in court or out of court, as the case requires, " to exercise sucli incidental powers, as are necessary to carry into effect the powers expressly conferred." Thus, the Surrogate's Court has no gen- eral jurisdiction to entertain a proceeding for tlie construction of a will — except in connection with tlie probate of a will of per- sonal property, as provided by section 2624 — yet frequently it happens that the court must construe testamentary jprovisions as an incident to the exercise of its undoubted jurisdiction. So the Surrogate's Court has the authority to construe a will, where, upon an accounting, the right to a legacy depends upon a ques- tion of construction which must be determined before a decree of distribution can be made {Riggs v. Cragg, 89 iVi Yl 479 ; Matter of Verplanck, 91 JS^. Y. 439) ; or, where the interpretation of a clause in the will creating a trust is necessary in order to deter- mine the disposition of trust funds {Matter of Raymond, 73 App. Biv. 11, 76 Supp. 855) ; or, for the purpose of ascertaining to whom letters testamentary should be issued {Matter of Owens, 33 Supp. 422, 24 Civ. Pro. 256) ; or, Avhere, upon an accounting, the liability of the decedent as an executor can be determined only by the provisions of the will. {Matter of Byalls, 80 Sun 459, 30 Sup^. 455, 62 St. Rep. 287.) The Surrogate's Court may construe a will whenever neces- sary to solve questions arising on the accounting of executors {Purdy V. Hayt, 92 iV: j; 446 ; Matter of Thompson, 5 Bern. 117); and,, for the purpose of distribution, it may determine the valid- ity of a trust and establish the amount of distributive shares (Accounting of Verplanck, Ql N. Y. 439 ; Steinele v. Oechsler, 5 Bedf. 312 ; Giles'' Estate, 11 Abh't iVC- O. 57) ; and in every case it has jurisdiction to construe a will so far as may be necessary in distributing the estate. {Blatter oj Perkins, 75 Him 129, 26 Supp. 958, 57 St. Rep. 228, aff'd 145 iVi Z: 599 ; Matter of Met- calf, 6 Misc. 524, 27 Supp. 879 ; Matter of Young, 17 Misc. 680, 44 Supp. 585.) Thus, where essential to the adjustment of an executor's account, it may determine whether a testamentary provision for the widow is in lieu of or additional to her dower. {Matter- of Garden, 68 App. Div. 388, 74 Supp. 259, mod. 172 N. Y. 25.)' However, where no question of present distribution is before the court,, a direction fixing the future attitude of executors or trustees^ or pointing out the manner in which a Cn. 4, § 69. JURISDICTION OF THE COURT. 65 Limited Jurisdiction : Implied Authority. fund should be distributed by them on the happening of some uncertain event, is not germane to the proceeding and does not constitute such a construction as will be binding upon the court when the question becomes a present one {Johnson v. Lawrence, 95 iV! F! 154; Matter of McOahill, 29 31isc. 450, 61 Supp. 1071) ; but, on a settlement of the account of an execu- tor or administrator who has made advances for the support of an infant entitled to a share in the estate, the Surrogate's Court has jurisdiction to adjudicate, upon equitable principles, a claim for such advances and to make an allowance therefor where the expenditure for which reimbursement is so sought is such as would have been authorized by the court had application been made in advance. {Hyland v. Baxter, 98 iV^ YI 610.) While the Surrogate's Court has no power under section 2624, or otherwise, to pass upon the validity^ construction or effect of a will as to its disposition of real estate yet where it relates to real and personal property, and the dispositions of both are inseparably connected it may give a construction of the will or pass upon the validity of any part of it. {Matter of Austin, 35 App. Div. 278, 55 /Supp. 52) ; and although it may not construe or enforce an antenuptial agreement in a direct pro- ceeding, yet, in the administration of the estate of a deceased party thereto and the distribution of his property, it has jur- isdiction to determine the effect of such a docume nt and to en- force it (Matter of Estate of Young v. Hichs, 92 iV: r: 235 ; Matter of Davenport, Zl Misc. 179, 74 Supp. 940) ; and it has been held that, on the accounting of an executor or administrator, it has authority not only to construe and determine the validity of such an agreement, but also, where the circumstances establish that it has been procured by deceit or false pretenses, to hold it null and void. {Pierce v. Pierce, 71 IST. T. 154; Matter of Estate ofJones,% Misc. 586, 24 Supp. 706.) However, under later authorities the latter proposition is questionable. Where application for the removal of an administrator is made by a person who alleges in his petition that he is a creditor of the decedent, and this allegation is denied by the administrator, the Surrogate's Court has jurisdiction to determine the issue so raised {Matter of Wheeler, 46 Hun 64 ; see also Susz v. Eorst, 4 Dem. 346) ; and, in a proceeding i nstituted by a creditor to sell the real property of a decedent for the payment of debts, it may 66 PART I : GENERAL PROCEDURE. Ch. 4, § 70. Same Subject: Illustrative Cases. adjudicate the claims of the petitioner as well as those of other creditors. {Matter of Ilaxtun, 102 iVT Y. 157.) So, in a proceed- ing to revoke the probate of a will, the Surrogate's Court may determine whether the petitioner is a person interested in the estate ; and it may decide from the facts presented that he ia estopped from claiming in hostility to the will and therefore can- not proceed further in the matter. {Matter of Peaslee, 73 Sun 113, 25 8upp. 940, 56 St. Rep. 134.) However, the incidental powers and implied authority of the Surrogate's Court only exist when necessary to the exercise of other powers expressly conferred by statute ; and they cannot be conferred by stipulation of the parties. {Matter of Bnrdick, 98 App. Div. 560, 90 Sitpp. 161.) Section 70. — Same Subject : Illustrative Cases. The Surrogate's Court has jurisdiction to compel an executor to account for the proceeds of real jyroperty sold under a testa- mentary power of sale (§ 2726), and, so far as necessary in making a proper distribution, the court may construe the will, upon such an accounting, even though it relates to real prop- erty (-BaMoiw V. Smith, 3 App. Div. 350, 38 Supp. 299); and formerly, in a proceeding to dispose of decedent's real property, it had jurisdiction also to relieve a purchaser, who, before com- pletion of the sale to him, alleged a defect in the title and demanded a return of his deposit and reimbursement for ex- penses. ( Wolfe V. tiynch, 33 Hun 309, reversing 2 Dem. 611.) And, as the Surrogate's Court has jurisdiction to direct the pay- ment of legacies, it has the power to determine whether a cor- poration {see Matter of McGraw, 111 iV^ Y. 66) or other person is capable of taking a given legacy , and, incidentally, to pass upon the question of the residence of such person. ( Oarlock v. Vandevorti 128 JST. Y. 374.) Where a temporary administrator had deposited moneys with a trust 'company, in obedience to a surrogate's order, it has been held recently that the trust company, by virtue of section 2680, which forbids the withdrawal of such moneys without an order of the surrogate, became, to that extent, an officer of the court ; and that the Surrogate's Court has power, on an accounting made by or in behalf of such administrator, to make such depositary a party to the proceeding and require it to estab- Ch. 4, § 71. JURISDICTION OF THE COURT. 67 Same Subject: Authority to Ascertain Marriage Relation. lish the legality of payments shown to have been made withoul such order. {Matter of Rothschild^ 109 App. Biv. 546, 96 Supp 372.) In this case Judge Claeke, writing for the court, says, at page 548 : It comes as somewhat of a shock to have it seriously argued that the court, because of whose order alone the fund has come into possession of the company, and upon whose order alone the money can be legally paid out, may not say to its trusted depositary, " What have you done with the funds so intrusted to you ? " The power of the court is unquestionable. Bat the question arose in an application to make the trust company a party to the accounting; and it remains to be seen whether the Surrogate's Court has jurisdiction to compel such a depositary to refund moneys which it has paid out upon a check of the administrator but Avithout an order of the surrogate. The ^liability of the trust company is undoubted : it is only the juris- diction ol the Surrogate's Court, to enforce this liability, that may be questionable. Section 71.— Same Subject : Authority to Ascertain Mar- riage Relation. While the Surrogate's Court has no jurisdiction over marriage or divorce, yet, when incidental to the exercise of some power expressly conferred, it has authority to determine— or, at least, to ascertain — the existence or validity of either. Upon an appli- cation for the probate of a will, where the right to support or oppose such application depends on an interest in the estate, the Surrogate'^ Court, even before taking any testimony as to the factum of the will, may determine the status of any party pro- posing to contest ; and thus it has jurisdiction to take proofs and ascertain whether an alleged widow of a testator, who offers to contest his will, was indeed his lawful wife. {Matter of Hamilton 76 Hun 200, 27 Supp. 813, 57 St. Rep. 810 ; and see Matter of Brush, 25 App. Biv. 610,. 49 Supp. 803.) Likewise, for the pur- pose of determining to whom a bequest is payable, the court may pass upon the validity of a marriage or divorce so as to ascertain the legitimacy of a child claiming the bequest {Matter of Hall, 61 App. Biv. 267, 70 Supp. 405) ; and, generally, as the Surro- gate's Court has power to decide who are the distributees of an 68 PART I : GENERAL PROCEDURE. Ch. 4, § 72. Incidental Powers of the Surrogate. estate, it may inquire into the legitimacy of children (Matter of Laramie, 53 ITun 633, 6 Supp. 175, 24 St. Rep. 702), or the exist- ence of a valid marriage ( Chamberlain v. Chamberlain, 11 JST. Y. 423; Matter of Patterson, 146 N. Y. 327), as an incident to the exercise of such jurisdiction. So where the widow of a testator applies to the Surrogate's Court to have set apart, for her benefit, the articles exempt under section 2713, the Court has jurisdiction to determine whether she is estopped by an antenuptial agreement waiving dower " in his estate," and, for such purpose, to interpret the agreement. {Matter of Estate of Young v. Hicks, 92 iV. Y. 235.) Section 72.— Incidental Powers of the Surrogate. Although the general powers, conferred upon Surrogates' Courts by section 2472, include by implication such other powers as may be necessary to the complete exercise of the authority expressly granted, nevertheless many such incidental powers have been conferred specifically as follows : 8 2481. Incidental Powees of the Sdebogatb. — A surrogate, in court or out of court, as the case requires, has power : 1. To issue citations to parties, In any matter within the jurisdiction of his court ; and, in a case prescribed hy law, to compel the attendance of a party. 2. To adjourn, from time to time, a hearing or other proceeding in his court ; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give an additional notice, as may be necessary. 3. To issue, under the seal of the court, a subpoena, requiring the attendance of a witness, residing or being in any part of the State ; or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court. 4. To enjoin, by order, an executor, administrator, testamentary trustee, or guardian, to whom a citation or other process has been duly issued from bis €ourt, from acting as such, until the further order of the court. 5. To require, by order, an executor, administrator, testamentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty im- posed upon him, by statute, or by the Surrogate's Court, under authority of a statute. 6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court ; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other suflJcient cause. The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate ; and his determination must be reviewed, as if an original application was made to that term. 7. To punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may pnnlsh a person for a similar contempt, and in like manner. 8. Subject to the provisions of law, relating to the dlBqaallflcatlon of a Cii. 4, § 73. JURISDICTION OF THE COURT. 69 Surrogate's Power to Enjoia Executors, etc. judge in certain cases, to complete any unfinished business, pending before his predecessor in the ofiBce, including proofs, accountings, and examinations. 9. To complete, and certify and sign in his own name, adding to his signature the date of so doing, ali records or papers, left uncompleted or unsigned by any of his predecessors. 10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein. 11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed. In ail matters subject to the cog- nizance of his court, according to the course and practice of a court, having, by the common law. Jurisdiction of such matters, except as otherwise pre- scribed by statute ; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred. 12. A surrogate or a clerls of the Surrogate's Court has power to administer oaths, to take affidavits and the proof and acknowledgment of deeds and all other instruments In writing, and certify the same with the same force and effect as if taken and certified by a county judge. (1880 ch. 178, am'd 1909 ch. 65.) Moreover the following general Code section applies to the Sur- rogate's Court : S 7. Gekbkal Powees of Codets op Recoed. — A court of record has power : 1. To issue a subp(Bna, requiring the attendance of a person found In the State, to testify in a cause pending in that court ; subject, however, to the limitations, prescribed by law, with respect to the portion of the State, in which the process of a local court of record may be served. 2. To administer an oath to a witness, in the exercise of the powers and duties of the court. 3. To devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it. (1876 ch. 448.) Many of the powers enumerated in section 2481 relate to the ministerial duties rather than to the judicial functions of the sur- rogate and require no special comment ; but it may be of service to notice briefly, in this connection, some of his other powers although each of them will be considered again when the partic- ular matter, to which it relates, is discussed hereinafter. Section 73. — Surrogate's Power to Enjoin Executor, etc. Under the former statute (1837 ch. 460 § 61) a surrogate was authorized to enjoin an executor, administrator or guardian only from acting as such during the pendency of a proceeding to remove him from office ; but, by section 2481, the testamentary trustee has been brought within the range of this limited power of injunction, and its exercise no longer is confined to proceedings for removal from office. The surrogate now has power : 4. To enjoin, by order, an executor, administrator, testamentary trusteie, or guardian, to whom a citation or other process has been duly issued from his court, from acting as such, until the further order of the court. (§ 2481; see sec. 72 ante.) The propriety, and necessity, even, of enabling the surrogate to exercise this power in a proceeding for the removal from 70 PART I : GENERAL PROCEDURE. Ch. 4, §§ 74, 75. Executor to Perform Statutory Duty. — Granting New Trials. oflBce of an executor, administrator, guardian, or testamentary trustee is obvious ; but precisely what other cases are intended to be included is not apparent. However, it has been held that this provision does not justify any interference with the right of one of two executors to control and dispose of assets without the cooperation of his associate, merely because of a disagreement between them as to the advisability of a proposed sale {Brennan v. Lane, 4 Bern. 322) ; and in every case " a cita- tion or other process ", duly issued to the executor, administrator, guardian or testamentary trustee, must jorecec^e the injunction. Section 74. — Surrogate's Power to Require Executor, etc. » to Perform Statutory Duty. The surrogate is empowered also : 5. To require, by order, an executor, administrator, testamentary trustee, or guardian, suliject to the jurisdiction of his court, to perform any duty im- posed upon him, by statute, or by tlie Surrogate's Court, under authority of a statute. (§ 2481; see sec. 72 ante.) As a general thing where the statute imposes a duty upon an executor, administrator, testamentary trustee or guardian it alsiq^ expressly empowers the surrogate to enforce its perform- ance, as where by section 2716 the surrogate is explicitly author- ized to compel an executor or administrator to make the in- ventory required by section 2711 ; but there may be exceptions : and these general provisions are intended to cover any case where a statutory duty has been imposed but no especial authority to enforce it has been conferred. It seems needless to expressly empower the surrogate to enforce any duty imposed upon an executor or other trustee by the " Surrogate's Court, under au- thority of a statute." Moreover, apparently, authority of this sort is conferred abo by section 2472 which empowers the Surro- gate'Si Court to direct and control the conduct of executors, adm^istrators, and testamentary trustees, and, " in the cases» especially prescribed by law, to direct and control " the conduct of guardians. {See s&c 6^ ante.) Section 75. — Vacating Orders- and Decrees, etc. : Granting New Trials. The surrogate is empowered also : 6. To, open, vacate, modify, or set aside, or to enter, as of a former time, Ch. 4, § 75. JURISDICTION OF THE COURT. 71 Vacating Orders and Decrees, etc. : Granting New Trials. a decree or order of his court ; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as * court of record and of general jurisdiction exercises the same powers * * * (§ 2481 ; sfe 8ec. 7a ante.) It has been held that the first sentence above quoted is to be construed as though its semi-colon were a comma, and that the exercise of each of the powers granted is limited to cases of " fraud, newly discovered evidence, clerical error or other suffi- cient cause " (Olmsted v. Zong, 4 Dem. 44: s. c. as Matter of Olmsted, XI AWt N. G. 320) ; and this construction seems acceptable to the higher courts. {Matter of Tilden, 98 iV; 3^ 434; Matter of Hawley, 100 JSf. Y: 206 ; Matter of 'White, 52 App. Div. 225, 65 Supp. 168 ; Matter of Douglas, 52 App. Div. 303, 65 Supp. 103.) The Surrogate's Court has power independently of any statute to exercise control over its own records and to vacate its own decrees for mistake, fraud, or clerical error ; for it must be deemed to possess the incidental poAvers in that respect common to all courts or officers exercising judicial functions. (Matter of Began, 167 iV: Y. 388, 343 ; Morgan v. Cowie, 49 App. Div. 612, 63 Supp. 608.) Indeed most of the powers mentioned in subdivision 6 of section 2481 were exercised by the surrogate before the Code; and so it has been held that these provisions are but declaratory of the law as it previously existed. (Matter of Henderson, 157 N. Y. 423, 427 ; see Sipperley v. Baucus, ^^N. Y. 46 ; Butler v. Emmett, 8 Paige 12 ; Vreedenhurgh v. Calf, 9 Paige 128 ; Skidmore v. Davies, 10 PaigeilQ ; Pew v. Hastings, 1 Barb, Ch. 452 ; Brick's Estate, 15 Abh. Pr. 12 ; Dobke v. McClaran, 41 Barb. 491 ; Campbell v. Thatcher, 54 Barb. 382 ; Strong v. Strong, 3 Redf. 477 ; Bailey v. Hilton, 14 Him 3.) So far, however, as the court. has inherent power over its own records, independently of special authority conferred by statute, such power belongs exclusively to it and cannot be exercised for it by an appellate tribunal. (Matter of Hawley, 100 JST. Y. 206.) Under settled rules of construction the words " or other suffi- cient cause " should be interpreted to mean causes of like nature with those specifically named. The maxim " noscitur a sodis " applies and limits the scope of the general phrase. (Matter of Tilden, Q9, JST. Y 434 ; Matter of White, 52 App. Div. 225, 65 Supp. 168 ; Matter of Bodine, 119 App. Div. 493, 104 Supp. 138.) How- 72 PART I : GENERAL PROCEDURE. Ch. 4, § 7S. Vacating Orders and Decrees, etc. : Granting New Trials. ever, the rule is not always observed in construing this sentence ; and it has been held that the surrogate is thereby empowered to vacate a decree finally settling the accounts of an executor where it subsequently appears that no vouchers whatever had been filed ia the proceeding. {Hatter of Wicke, 74 App. Div. 221, 77 /Supp. 558.) It will be observed that, in the section itself, there is a fur- ther limitation upon the powers conferred by this subdivision ; and they " must be exercised 07-di/ in a like case and in the same mamier, as a court of record and of general jurisdiction exercises the same powers." However, the Court of Appeals recently has held that by this provision no limitation of time is placed upon the exercise of these powers by the surrogate {Matter of Henderson, Ibl JV. T. 423; and see Matter of Flynn, 136 iVi TT 287), thus overruling its earlier decisions in Matter of Tilderiy (98 N. T. 434) and Matter of Hawley. (100 N. Y. 206.) With this exception, the practice under this subdivision is substantially the same as that prevailing in the Supreme Court. The opening of a decree, formally and lawfully made, requires the exercise of sound discretion ; and it never should be done for the purpose of allowing a reinvestigation or new trial of any matter adjudicated thereby. {Becker v. Elviood, 3 Thomp. & Cook 4:S.J The Surrogate's Court has no power to vacate or modify its decrees or orders for any error of substance or of law, but the only remedy in such a case is by appeal ; for the surro- gate may not review his own decisions or proceedings. {Matter of Hawley, 100 N'. r: 206 ; Farmers'' Loan and Trust Co. v. Hill, 4 Bern. 41; Story v. Dayton, 22 Hun 450; Matter of Humfreville, 8 App. Div. 312, 40 Supp. 939; Matter of Douglas, 52 App. Div. 303, 65 Supp.lOZ; Matter of Seaman, 63 App. Div. 49, 71 Supp. 376; Matter of Dowry, 89 App>. Div., 226, 85 Supp. 924; Matter of Gaffney, 116 App. Div. 583, Wl. Supp. 882, aff'd 189 N. T. 503 ; Matter of Barmim, 129 App. Div. 418, 114 Supp. 33.) And where an order or decree has-been modified or affirmed upon appeal, the surrogate may not interfere with the determination of the appellate court and no longer has power to open the decree or order iDecause of any matter disclosed by the record upon . appeal {Matter of Westerfield, 61 App. Div. 413, 70 Supp. 641 ; Marshall v. Boyer, 52 Hun 181, 5 Supp. 150, 23 St. Rep. 302 ; Reed v. Reed, ^2 N. Y. 651) ; but this rule does not affect an Ch. 4, § 76. JURISDICTION OF THE COURT. 73 Decree without Jurisdiction Vacated by Order. application to open such a decree when made by one not a party to the appeal. {Matter of Jlodffman, 82 Jlun 419, 31 Supp. 263, 63 St. Hep. 580, app. dis. 145 JST. T. 637.) It has been held that the surrogate has power to modify a decree, assessing a transfer tax, by deducting from the taxable property the amount of executor's commissions {Matter of Silli- man, 79 App. Div. 98, 80 Supp. 336, afd 175 M Y. 513) and also that he may vacate such a decree where it appears that the law authorizing the tax subsequently was declared unconsti- tutional by the Court of Appeals. (Matter of Scrimgeour, 80 App. Div. 388, 80 Supp. 636, aff'd 175 N. Y. 507.) These decisions seem to violate the rule forbidding the Surrogate's Court to vacate its own decrees for error of law. To sustain either one upon principle it must be held that the surrogate was absolutely without jurisdiction to assess the tax or the portion thereof complained of. In Matter of Scrimgeour (175 iVi Y. 507) the Court of Appeals disposes of the case by saying : Both parties mistakenly supposed that the estate was, under the law, subject to a transfer tax. The proposi- tion was not litigated nor decided, but assumed. We think it was within the power of the surrogate, on an application to his discretion and favor, to open the casOj relieve the respondents from the consequence of theit mistake and set aside the order which had been erro- neously made. This brief opinion, however, scarcely discloses the principle of the decision. But it seems to be settled that if a party, through mistake or inadvertence or from any excusable cause, fails to appear and a decree is entered against him, the Surrogate's Court has power to open the decree and let him be heard ; for such power is essential to the administration of justice. {Peio v. Hast- ings, 1 Barb. Ch. 452 ; Matter of Henderson, 157 IT. Y. 423! ; Matter of Doig, 125 App. Div. 746, 110 Supp. 93.) Section 76. — Decree without Jurisdiction, Vacated by Order. The Surrogate's Court has inherent power over its own records sufficient ta expunge therefrom orders and decrees placed there without authority; and nothing contained in section' 2481 will he construed to lessen this power. (Matter of Armstrong, 72 74 PART I : GENERAL PROCEDURE. Ch. 4. § 77. Power to Punish for Contempt. App. Biv. 286, 76 Supp. 37.) That an order or decree has been made without jurisdiction is sufficient cause to vacate and expunge it from the records, even though it be void and unavail- able for any purpose; and, although it may be attacked col- laterally, it is proper to set aside or vacate it by an order. {Schaet- tler V. Gardiner, 47 If. Y. 404 ; Kamp v. Kamp, 59 N. Y. 212 ; Matter of Uhderhill, 117 JST. Y. 471 ; Matter of Armstrong, 72 App. Div. 286, 76 Supp. 37.) In Seaman v. Whitehead (78 JST. Y. 306) the surrogate had denied a motion to vacate that part of a decree directing the pay- ment of money which the surrogate had no authority to order paid. Judge Millee, writing for the Court of Appeals, said : The question arising in such a case relates to the jurisdiction of the surrogate and could properly be raised by a motion to set aside the order upon that groundi If void, it should have been vacated for that reasohj and an appeal lies from an order denying the motion to va- cate. {Kamp V. Kamp, b^ N. Y. 212; Schaettler v. Gardiner, 47 iV: Z; 404.) It also appears from these cases that if a deci-eej otherwise unobjectionable, contains a void provision the latter may be expunged by order and the decree as so modified be permitted to stand ; and, conversely, it may be amended by incorporating in it a provision contained in the surrogate's decision but omitted from the decree by inadvertence or mistake. {Matter of Robertson, 51 App. Biv. 117, 64 Supp. 385, affd 165 iVI Y. 675.) Section 77. — Power to Punish for Contempt. The surrogate is specifically empowered : 7. To punish any person for a contempt of his court, civil Or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a pel^son for a similar contempt, and in lilse manner. ( § 2481 ; see sec. 72 ante.) This subdivision replaces a former statute (2 R. S. 221 § 6 subs. 2, 4 c6 6) whereby in certain designated cases the surrogate was authorized to punish for contempt ; but by the new provision his power in this respect has been enlarged, and the practice relating to its exercise is assimilated to that prevailing in the Supreme Court. Ch. 4, § 78 JURISDICTION OF THE COURT. 76 Power of Surrogate to Complete Unflnished Business of Predecessor. Under the former law the Court of Appeals held that the power of the court to punish for contempt was limited to the cases mentioned in the statute. {Matter of Watson v. Nelson, &9 JST. Y. 636.) Since the enactment of section 2555 the disobedience by an executor, or other trustee, of a Surrogate's Court decree direct- ing him to pay money generally, as well as out of a specific fund, may be punished as a criminal contempt. {Matter of Snyder, 103 JSr. r: 178 ; Matter of Holmes, 79 Ap^x Div. 267, 79 Supp. 687, aff^d 176 N. Y. 604.) The general procedure, in enforcing a de- cree by contempt proceedings under this section, is discussed hereinafter, at some length {see sees. 317-333 post) ; and, for the most part, it applies also to a contempt proceeding under subdivi- sion 7 of section 2481. Section 78. — Power of Surrogate to Complete Unfinished Business of Predecessor* Again the surrogate is empowered : 8. Subject to the provisions of law, relating to the disqualification of a judge in certain cases, to complete any unfinished business, pending before his predecessor in the ofQce, including proofs, accountings, and examinations. 9. To complete, and certify and sign in his own name, adding to his signature the date of so doing, all records or papers, left uncompleted or unsigned by any of his predeeessorB. (§ 2481 ; see sec. 7a ante.) Reference here is made to section 2489 which provides that Where the authority of an acting surrogate has been terminated, the unfinished business in any proceeding before him " must be transferred to, and may be completed by, the surrogate, in the same manner and with like efEect, as where a new surrogate com- pletes the unfinished business of his predecessor. {See sec. 36 ante.) These subdivisions were discussed in Matter of Carey, 24 App. Div. 531, 49 Svpp. 32) where the court held that the surrogate is authorized thereby to take up a probate proceeding, at the point where it was left unfinished by his predecessor, and, permitting all parties to introduce further proof, to decide the case upon the whole evidence including that already taken. {See Matter of Martinhoff, 4 Eedf. 286 ; Reeve v. Crosby, 3 Redf. 74.) In Matter of Johnson (27 Misc. 167, 58 Supp. 601) it was held by a surrogate of New York County that he was authorized to decide a will contest which had been tried before, and submitted 76 PART I : GENERAL PROCEDURE. Ch. 4, § 70. Common Law Jurisdiction and Incidental Powers. to, his predecessor ; and that it was not necessary to retry the case before him. {See Matter of Lawrence's Estate, 58 Supp. 597.) However it has been held, where a surrogate had filed an opinion in an accounting and died before his decision had been made, that his successor neither should make formal findings based upon that opinion nor take up the matter de novo ; but that -he should take the proceeding at the point where it was left by his predecessor and continue it — making the requisite decision upon the evidence previously taken and any additional proof offered by the parties. {Matter of Winsloio, 12 Misc. 254, 34 Supp. 637; see Matter of McCue, 17 'W'kly. Dig. 501.) Where a special proceeding is pending before a surrogate who dies or goes out of oflice, leaving it unfinished, it should be con- tinued before the ; snoceeding surrogate and be brought to a hearing by a notice of motion or an order to show cause. {Matter of Lawrences Estate., 58 Supp. 597; Matter of Espie, 2 Medf. 445; Matter of Winslow, 12 Misc. 254, 34 Supp. 637,) Section 79. — Common Law Jurisdiction and Incidental Powers. And again, the surrogate is empowered : 11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the com- mon law, Jurisdiction of such matters, except as otherwise- prescribed by statute ; and to exercise such incidental powers, as are necessary to carry Into • effect the. powers expressly conferred. (§ 2481 ; see sec. 72 ante.) 'Precisely what may be the full meaning of these very general ■ provisions is not altogether clear ; but probably they do not ma- terially enlarge the powers which were exercised by the surrogate prior to the Code. {Brick's Estate, 15 Abb. Pr. 12, 82.) It will " be observed that whatever powers have been conferred upon the surrogate by this subdivision are restricted to procedure in " mat- ters subject to the cognizance of his court " — thereby meaning, doubtless, matters made subject to such cognizance by express ■statutory provisions. {Hoes v. Halsey, 2 Dem. bll ; s. c. as Matter of Halsey, 13 Abb. N". C. 353.) Thus section 2818, providing for the appointment of a successor to a deceased testa- mentary trustee, is silent as to the procedure ; and it has been Ch. 4, § 80. JURISDICTION OF THE COURT. 77 Exclusive Jurisdiction with Respect to Decedents' Estates. held that the proper course, as indicated by this subdivision, is to follow the practice of the late Court of Chancery. ( Tompkins v. Moseman, 5 Bed/. 402.) Moreover, in case there is some omission respecting the prac- tice as defined by the statute, either through inadvertence in en- actment or amendment or otherwise, it has been held to be the surrogate's duty to adopt the practice in similar cases formerly pursued by the Court of Chancery, and more recently by the Su- preme Court, in the exercise of equity powers (Matter of White- head, 3 Dem. 227) ; and also, where the Surrogate's Court has general jurisdiction of a proceeding, but the precise way in which that jurisdiction may be exercised is not pointed out, it is held that the surrogate may adopt such procedure as the case demands. {Estate of Delaplaine, 12 Civ. Pro. Hep. 35.) But this subdivision, with its ambiguous delegation of powers, may not be invoked to authorize a procedure according to any of those provisions of the Code which, by section 3347, have been declared inapplicable to the Surrogate's Court. {Tilden v. Bows, 2 Dem. 489.) How- ever, inasmuch as a court has common law jurisdiction to dis- miss an aci;ion wherein its processes are being used fraudulently or oppressively, it is held that under this subdivision the Surro- gate's Court may dismiss a proceeding where the person by whom it was instituted wilfully refrains from serving the citation upon certain of the parties before the return day. {Matter of Friedell, :,20 App. Biv. 382, 46 Supp. 787.) In this connection it may be noted that the Surrogate's Court has the general powers of every court of record, as conferred by Code section 7 : 3. To devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it. (See sec. 7a ante.) Section 80.— Exclusive Jurisdiction with Respect to Dece- dents' Estates. In certain cases the Surrogate's Court has exclusive jurisdic- jtion: § 2476. ExQLCSiVE JnEiSDiCTiosr. — ^The Surrogate's Court of each county has jurisdiction, exclusive of every other Surrogate's Court, to talse the proof of a will, and to grant, letters testamentary thereupon, or to grant letters of administration, as tlie case requires, in either of the following cases: 1. Where the decedent was, at the time of his death, a resident of that county, whether bis death happened there or elsewhere. 78 PART I : GENERAL PROCEDURE. Ch. 4, § 81. Residence Equivalent to Domicile. 2. Where the decedent, not being a resident of the State, died within that county, leaving personal property within the State, or leaving personal property which has, since his death, come into the State, and remains uaadministered. 3. Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other ; or leaving personal property which has, since his death, come into that county, and no other, and remains unadministered. 4. Where the decedent was not, at the time of his deatti, a resident of the State, and a petition for probate of his will, or for a grant of letters of ad- ministration, under subdivision second or third of this section, has not' been filed in any Surrogate's Court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. (1880 ch. 178.) It will be observed that where the decedent at the time of his death, was a resident of the State, only the Surrogate's Court of the county wherein he then resided can have jurisdiction over the administration of his estate. It makes no difference where he may have died, or where his property may be located ; for his residence within the State determines the jurisdiction of the court. Under some circumstances jurisdiction over the administration of the estates of non-resident decedents also is conferred upon the Surrogate's Court ; but this jurisdiction is limited to property within the State. In the case of a non-resident decedent the chief jurisdictional element is the fact that property left by him is within the State, unadministered. It is apparent, therefore, that the decedent's residence is always a jurisdictional fact to be as- certained by the surrogate from the evidence ; and, in the absence of fraud or collusion, his decision in the matter may not be ques-. tioned collaterally. (Bolton v. Schriever, 135 iVi n 65 ; see sec. 90 post.) However, the Surrogate's Court seldom takes jurisdiction under subdivision 3 of section 2476, where a non-resident has died without the State leaving personal property within the State, except to grant ancillary letters, as provided in sections 2695 and 2696, and to administer the estate' accordingly. {Matter' of Fitch, 160 iV: r: 87 ; see Parsons v. Lyman, 2Q JSF. Y. 103 ; Mat- ter of Erout, 128 N. Y. 70.) Section -81.— Residence Equivalent to Domicile. In section 2476 the word " resident " has been substituted for the word " inhabitant " used in the former statutes (see 2 R. S. 73 ; § 23; 1837 ch. 460 § 1) ; but no change of meaning seems to ;have ■ been contemplated or effected. Although there may be « conflicting adjudications blearing upon the much distorted (juestions of residence and domicile and the Ch. 4, § 81. JURISDICTION OF THE COURT. 79 Residence Equivalent to Domicile. difference between them for certain purposes " it is safe to say that the word "resident," in tlio section under consideration, and the corresponding word " inliabitant," in the superseded statutes, are synonymous ; and also tliat the requisite " residence " is equiv- alent to " domicile " and includes both actual residence and in- tention. {Dupuy V. Wurtz, bi JSF. Y. 556 ; Matter of JSTewcomb, 192 W. r: 238 ; Matter of Cruger, 86 Misc. 477, 73 Su2}p. 812.) In People ex rel. James v. Surrogate's Court (36 Mun 218, 220) Judge Dykman, writing for the former General Term, says, refer- ring to the section under consideration : Residence has much the same signification as domi- cile, and means the place where a person lives and has his fixed permanent home and principal establishment, and where a person has two residences at different seas- ons of the year, that will be deemed his domicile or home which he himself selects or describes as his home, or where he votes or exercises the rights and duties of A citizen. Residence, combined with intention, constitutes a domicile, and the facts depend much on the intention of the party. And in Matter of Newcomh (192 N. Y. 238, 250) Judge Vann, writing for the Court of Appeals, says : As domicile and residence are usually in the sani0 place, they are frequently used, even in our statutes, as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Resi- dence mean.? living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent honie. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. In the leading case of Isham v. Gibbons (1 Brad. 69), the word « resident " was under consideration, as that word was used in the statute (1840 ch. 384)' authorizing letters testamentary to be granted in certain cases upon a will executed in this State " by a person not a resident of this State ", and the learned surrogate, after a full discussion of authorities, held that, in the statute re- lating to testamentary matters, the terms " resident " and " in- liabitant " have the same purport as, and are to be construed in 80 PART I : GENERAL PROCEDURE. Ch. 4, § 83. Jurisdiction : When Determined by Location of Property. deference to, the domicile of the decedent. And in Kennedy v. Ryall (67 N. Y. 379, 386), involving a question of inhabitancy under the old statute as conferring jurisdiction upon a surrogate to issue letters of administration, it was said by Judge Millbe, writing for the Court of Appeals : " Generally speaking domicile and residence mean the same thing. And an inhabitant is de- fined to be one who has his domicile in a place or a fixed resi- dence there," ( Crawford v. Wilson, 4 Jiarb. 520 ; see also Matter ofZerega's Will, 58 Hun 505, 12 Supp. 497, 35 St. Rep. 558; s. c. 1 Power's 209, 20 Supp. 417 ; People v, Piatt, 50 Hun 454, 3 Supp. 367, 20 St. Rep. 249, af\l 117 N.Y.Vb'd; Hart v. Kip, 148 JV. Y. 306.) To effect a change of domicile there must be not only an actual change of location but also an intention to abandon the former residence and acquire another one as the sole domicile. ( Von Hoffman v. Ward, 4 Red/. 244.) Neither length of residence alone nor intention alone is enough ; bat both must be combined to work a change of domicile. (Pupuy v. Wurtz, 53 JV. Y. 656.) However "the existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. " (Matter of Newcomh, 192 N. Y. 238, 250.) The question as to what constitutes a person's domicile is one at fact rather than of law; and, with respect to the evidence necessary to establish intention, it is impossible to lay down any positive rule. The court must draw its conclusion from all the circumstances of the particular case. {See sec. 83^0*?/ Matter of Newcomh, 192 N. Y. 238.) A married woman may acquire a domicile apart from her hus- band's residence, even though no legal separation has taken place between them. {Matter of Florence, 54 Hun 328, 7 Supp. 578, 27 St. Rep. 812 ; Matter of Walker, 54 Misc. 177, 105 Supp. 890 ; see Matter of Bushhey, 59 Misc. 317, 112 Supp. 262.) Section 82. — Jurisdiction : When Determined by Location of Property. Where the decedent was a resident of the State the Surrogate's Coui't of the county, wherein he resided at the time of his death, has exclusive jurisdiction over the administration of his estate no matter where his property may be located. But in the case of a Ch. 4, § 82. JURISDICTION OP THE COURT. 81 Jurisdiction : When Determined by Location of Property. non-resident decedent, jurisdiction depends upon the actual pres- ence within the State of either real or unadministered personal property belonging to him at the time of his death ; and, in the absence of such property, no , Surrogate's Court has jurisdiction over the probate of his will or the administration of his estate, even though he may have died within the State. Personal property of small value may suffice- as a foundation for the jurisdiction of a Surrogate's Court, under section 2476, to take proof of the will of a non-resident decedent or to grant letters testamentary or of administration ; and in one case Surro- gate Rollins held that the jurisdiction of his court might rest undisturbed on a Japauese folding chair which belonged to the testator at the time of his death and had been brought into the State afterwards. ( White v. JVelson, 2 Dem. 265.) Even though such property of a non-resident has been brought into the State unlawfully, the fact that it is within the State may suffice to confer jurisdiction upon the Surrogate's Court of the county wherein it is found {Matter of Accounting of Hughes, 95 iVi Yi 55) ; but if brought into the State for the purpose of an application for letters of administration, so that a suit may be brought here rather than in the State of the decedent's domicile, the case is one of collusion and legal fraud and does not confer jurisdiction upon any Surro- gate's Court. {Hoes y. JST. Y., N. H. & H. B. B. Co., 173 K Y. 435. Where a foreign administrator brings property of the decedent into the State, a Surrogate's Court is not thereby authorized to issue original letters of administration, since such property can- not be said to be " unadministered " {Matter of Mc Cabe, 84 App. Biv. 145, 82 Supp. 180, af'dlll JV. Y. 584) ; and, in like manner, funds transmitted to this State by a foreign executor, to be paid over pursuant to the will, are not subject to administration here. {Sedgioich v. Ashburner, 1 JBrad. 105.) Where, however, the foreign executor of a non-resident decedent, A, who had taken into his possession the personal property of a predeceased non- resident, B, brings into the State suchproperty of B,ihQ Surrogate's Court of the county, wherein it may be found, has jurisdiction to appoint an administrator of the estate of B ; and such adminis- trator may maintain an action to recover, from the foreign ex- ecutor, the property of B {GuUck v. Gxdick, 33 Barb. 92, 21 82 PART I : GENERAL PROCEDURE. Ch. 4, § 88. Concurrent Jurisdiction : When it Becomes Exclusive. How. Pr. 22), which, in such case although in possession of the foreign executor, is unadministered. It has been held that the Surrogate's Court may take proof of the will of a non-resident decedent where since his death a prom- issory note belonging to him, executed in another State and secured by a mortgage on land situated therein, has been brought into its county and remains unadministered. {Matter of Hopper, 5 Dem. 242.) Likewise, a policy of insurance, issued on the life of a non-resident decedent by a corporation having its principal place of business within the State, is enough to confer jurisdiction upon the Surrogate's Court of the county, where the corporation is located, to issue letters of administration on the unadministered ^estate of such decedent {Matter of Miller, 6 Dem. 381) ; and it has been held that the interest of a decedent in an insurance policy, issued upon the life of another person, constitutes assets sufficient to give jurisdiction to the Surrogate's Court of the county, wherein the policy is, to issue letfcers of administration upon such decedent's estate. {Johnston v. Smith, 25 Hun 171.) Section 83. — Concurrent Jurisdiction : When it Becomes Ex- clusive. Where a non-resident dies within the State and leaves property therein the Surrogate's Court of the county where he died has exclusive jurisdiction, even though no property of such decedent be within that county. But where a non-resident has died without the State, leaving property in two or more counties within the State, the Surrogates' Courts of those several counties have a concurrent jurisdiction which becomes exclusive in the court first exercising it. 5 2477. CONCnEBENT JCBISDICTION OF TWO OB MOBE SUBBOQATES WhcrS personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in subdivision third of the last section (§ 2476) ; or real property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section (§ 2476) ; the Surrogates' Courts of those counties have concurrent jurisdiction, exclusive of every other Surrogate's Court, to take the proof of the will and grant letters testamentary thereupon, or to grant letters of ad- ministration, as the case requires. But where a petition for probate of a will, or for letters of administration, has been duly filed in either of the courts so possessing concurrent jurisdic- tion, the jurisdiction of that court excludes that of the other. (1880 ch. 178.) g 2475. Effect op Exebcisb op .Tcbisdiction. — Jurisdiction, once duly exercised over any matter, by a Surrogate's Court, excludes tbe subsequent exercise of Jurisdiction by another Surrogate's Court, over the same matter, and all its Incidents, except as otherwise specially prescribed by law. Where a guardian has been duly appointed by, or letters testamentary or of Ch. 4, § 84. JURISDICTION OF THE COURT. 88 Personal Property : Assets. administration have been duly issued from, or any otiier special proceeding has been duly commenced in, a Surroga-te's Court having jurisdiction, all further proceedings, to be talsen in a Surrogate's Court, with respect to the same estate or matter, must be talcen in the same court. (1880 ch. 178.) Under these provisions the first petition alleging the jurisdic- tional facts, when presented to a Surrogate's Court of any county and followed by service of its citation upon one or more of the parties, gives to the court jurisdiction to try the question of resi- dence ; and of this jurisdiction that court cannot be deprived by any subsequent proceeding in the Surrogate's Court of another county. (Matter of Buckley, 41 Jlim 106, 2 St. Hep. 673 ; People ex rel. James v. Surrogate's Court, 36 Hun 218 ; People ex rel. Weatherheady. Waldron, 52 Sbie. Pr. 221.) Although the dece- dent's residence may be a jurisdictional fact, yet it is one that must be determined fey the Surrogate's Court ; and, even if its adjudication be erroneous, the court does not thereby lose juris- diction until reversed upon appeal. {Roderigas v. East River Sav. Inst, 76 JV. T. 316 ; 0' Connor v. Muggins, 113 JV. T. $11 ; Bolton V. Schriever, 135 IT. Y. 65.) Section 84. —Personal Property: Assets. By former statutes (2 R. S. 73 § 23 ; 1837 ch. 460 § 1) the jurisdiction of the surrogate in case of a non-resident decedent was made to depend upon unadministered assets within the State ; but by section 2476 the words "personal property " have been substituted for the word "assets'" which, as defined in -the Code, "signifies personal property applicable to the payment of debts iOf a -decedent;" '(!§ -2514 sub. 2.) This change is an improvement; 'for the Surrogate's Court should have jurisdiction where there is ■any vmadniinistered personal property, even though not " assets " because reserved to the use of 'the 'husband, widow or family, since the very setting aside of the exempt property (§ 2713) is a step in the administration of the estate. JPersonal property is defined in the General Construction Law : § 39. Property, Personal. — The term personal property includes chattels, money, things in action, and all written instruments themselves, as distin- guished from the rights or ^interests to which they relate, by which any right, ■interest, lien or incumbrance in, to or upon property, or any debt or financial 'Obligation is created, acltnowledged, evidenced, transferred, discharged or de- feated, wholly or in part, and everything, except real property, which may be the subject of ownership. Oil wells and all fixtures connected therewith, situate on lands leased for oil purposes and oil interests, and rights held under and by virtue of any lease or contract or other right or license to operate for or produce petroleum ;84 PAKT I : GENERAL PROCEDURE. Ch. 4, §§ 85. 86. Jurisdiction Affected by Locality of Debts. — Jurisdiction in New County. x)ll, shall be deemed personal property for all purposes except taxation. (1909 eft. 27.) Section 85. — Jurisdiction Affected by Locality of Debts. § 2478. JCEisDiCTiON, How Affected by Locality of Debts. — For the pur- pose of conferring jurisdiction upon a Surrogate's Court, a debt, owing to a de- cedent by a resident of the State, is regarded as personal property, situated within the county where the debtor, or either of two or more joint debtors, resides; and a debt, owing to him by a domestic corporation, is regarded as personal property, situated within the county where the principal office of the corporation Is situated. But the foregoing provision does not apply to a debt evidenced by a bond, promissory note, or other instrument for the payment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resident or a non-resident of the State, or a foreign or a domestic government. State, county, public officer, association, or corporation. Is, for the purpose of so conferring jurisdiction, regarded as personal property, at the place where the l^opd, pote, or other instrument is, either within or with- out the State. (1880 cK-liS.) The principle of the last sentence of this section was substan- tially declared in £eers y. Shannon (73 iVI Y. 292) „where it was held that, for the purpose of conferring jurisdiction upon the Sur- rogate's Court, a debt upon a non-negotiable bond, eveh, has its situs where the bond is and not where the obligor resides although he be a resident of the State. The term « debts " is defined in section 2514 : 3. The word " debts " includes every claim and demand, upon whicli a judgment for a sum of money, or directing the payment of money, could be recovered in an action ; and the word " creditor " includes every person haying such a claim or demand, any person having a claim for expense of aApSipiaita- tlqn, or any person having a claim for funeral expenses. (See sec. i dnte.) jSection 86. -^Jurisdiction in New or Altered County. . § 2479. JppjSDieiiON OP Sdeeogatb in Case of Eeection oj' New County, ., ETC. — Where a new , county has .Jj^een heretofore, or is hereafter, erected, or territory has been heretofore, or is , herea,£tf r, transferred from one county to another, the jurisdiction of the Surrogate's^'tourt of each of the, cOijntles af- fected thereby, to take the proof of a will, or to grant letters, depends opon the locality, when the petition Is presented, of the place where the property of the decedent is situated, or where the event occurred, as the case may be, which determines jurisdiction. If, before the erection of the new county, or the transfer of the territory, J letters have been granted, upon the ground that the decedent died or resided . within the county, the Surrogate's Court from which they were issued has exclusive jurisdiction of the estate, and of all matters incidental thereto ; and it the place where the dec^ient died or resided is embraced within another i. county, certified copies of any papers or proceedings, filed, entered,, or recorded iJn the Surrogate's Court thjereot. must be furnished on the payment of the • fees therefor, by the proper officer, to any person interested in the estate ; and upon the latter's request and payment of the fees therefor, the proper officer of the court „so having jurisdiction must file, enter or record the same. In like manner, and with like effect as the originals. Where the letters, were granted upon any ground other than the decedent's death or residence within the county, the jurisdiction of the court from which thoy were issued remains unaffected by any change in the territorial limits . of Its county. (1883 eft. 56.) Ch. 3, § 87. JURISDICTION OP THE COURT. 85 Presumption of Jurisdiction. This section supersedes the ruling in JBugbee v. Surrogate of Yates Co. (2 Cowen 471) that jurisdiction remains with the sur- rogate of the old county, in case decedent at the time of his death was a resident there, without reference to the time of presenting the petition. It has been held that the phrase " when the petition is pre- sented", contained in this section, refers to the time when the petition comes before the Surrogate's Court, on the return of the citation issued thereon, and not to the time when the petition is filed. (Matter of McGinness, 13 Misc. 714, 35 Supp. 820.) Provision also is made for the transfer of- proceedings, on the erection or change of a county. § 2480. Id. ; Teansfeb op Proceedings to Peoper County. — A special pro- ceeding pending in a Surrogate's Court, whose jurisdiction to entertain tlie same is talten away Ijy tlie provisions of tbe last section, or in consequence of the erection of a new county, or the alteration of the territorial limits of a county, after this act takes effect, must be • transferred, hy order of the court in which it is pending, to the Surrogate's Court having jurisdiction ; and the latter court has the same jurisdiction, power, and authority with respect thereto, which the former court would have had, if the territorial limits of its county had not been changed. (1880 ch. 178.) Section 87. — Presumption of Jurisdiction. § 2473. Presumption of Jurisdiction. — Where the jurisdiction of a Surro- gate's Court to malse, in a case specified in the last section, a decree or other determination, is drawn in question collaterally, and the flecessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, nsed in the guMOgate's Court. The fact that the parties were duly cited is presumptively proved, by a recital to that eflEect in the decree. (1880 ch. 178.) This section relates to the evidence oi jurisdictional facts, where a decree is under collateral attack ; and it puts the orders and de- crees of a Surrogate's Court upon the same footing, in this partic- ular, as those of a court of general jurisdiction. It may be notecl here that "the Surrogate's Court obtains jurisdiction in every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary par- ties " (§ 2474), and not by allegations in the pleadings nor by recitals in the decree. However when a decree is assailed col- laterally, if the jurisdictional facts have been alleged in a duly verified pleading they are deemed to be conclusively established, in the absence of fraud or collusion ; and the only matter then open f o collateral attack is the due " citation or appearance of the nec- essary parties." Moreover, a recital in the decree, that a party 86 PART I : GENERAL PROCEDURE. Ch. 3, § 88. Same Subject: Rule of Evidence only. has been cited duly, is presumptive evidence of that fact ; but it may be rebutted by other evidence. (§ 2473 ; see sec 302 post.) Section 88.— Same Subject : Rule of Evidence. It is not the purpose of section 5473 to regulate matters of prac- tice in the Surrogate's Court ; and it does not declare that an order or decree may not be upheld unless founded upon a duly verified written pleading containing a statement of jurisdictional (facts. Indeed this is not the rule ; and pleadings may be oral -.and unverified, in the discretion of the surrogate, except where a written pleading is reqaii-ed by the Code. ( § 2533.) While sec- tion 2473 does not provide that an order or decree shall be void unless supported by allegations of jurisdictional facts, contained in a duly verified written petition or answer, it does declare that if there be such a pleading it is, as against collatera;l attack, presumptive, and, if no fraud or collusion appear, also conclusive proof of the jurisdictional facts. But where there is no evidence assailing the jurisdiction, it is not incumbent upon him who relies upon an order or decree to establish the juris- dictional facts ; nor is the order or decree any the less effective if no such proof be made. The section is designed to protect the order or decree but not to destroy it ; and, if not founded on such a verified pleadiijg, '-the attacking party may show as a fact, not that there was no sach pleading^ but that the jurisdictional ^acts did not exist and so that the Surrogate's Court had no power to make the order or decree. This construction harmonizes with the provisions of section 2474 ; and the two sections seem to indicate plainly the rule intended to be established by them. (Matter of Miller, 2 App. Biv. 615, 37 Sxipp. 447; MnrzynowsM V. Z>. X. & W. B. B. Co., 15 Supp. 841, 39 St. Bep. 299.) And so every special proceeding should be instituted by a duly verified petition setting forth the jurisdictional facts ; for an adju- dication by the Surrogate's Court in the exercise of its general jurisdiction, where the jurisdictional facts have been so alleged and the necessary parties have been duly cited or have appeared, is not thereafter open to collateral attack. Power to affect the adjudication resides in the court which made it and in the court ■to which it may be appealed; but otherwise, unless there be fraud ■or collusion (Hoes r. IST. Y., ISF. IT. & H. B. B. Co., 173 IT. T. Ch. 4, §§ 89, 90. JURISDICTION OP THE COURT, 87 Jurisdiction not Lost by Defect. — But to be Determined by Surrogate. 435), it may not be questioned, and the plea, when urged collater- ally, that the decision was erroneous must be unavailing always. {Matter of Hood, 90 iV: r: 512 ; O'Connor v. Huggins, 113 N. Y. 511.) Section 89. — Jurisdiction not Lost by Defect in Record : Amendments. § 2474. Jdeisdiction not Lost by Defect in EECOED.^The Surrogate's Court obtains jurisdiction in every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the neces- sary parties. An objection to a decree or other determination, founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to JurlBdiction, which actually existed, or the failure to take any intermediate proceeding, required by law to be taken, is available only upon appeal. But, for the better protection of any party, or other person interested, the Surrogate's Court may, in Its discretion, allow such a defect to be supplied by amendment. (1880 ch. 178.) Herein are embodied principles which already had been laid down by the courts ; and the rule is emphasized, that, if the jur- isdictional facts actually exist, a decree or order of the Surrogate's Court cannot be assailed collaterally merely because of an omission therefrom of recitals or proofs of such facts. This section also allows the court to supply such defects by amendment ; and, in this connection, it may be noted that sections 721-730 of the Code, relating to mistakes, omissions, defects and irregularities, also apply to the Surrogate's Court. (§§ 2538 & 3847 sub. 6; see sees. 174-176 i>os«.) Section 90. — Question of Jurisdiction to be Determined by Surrogate. The Surrogate's Court has general jurisdiction over the admin- istration of decedents' estates and obtains jurisdiction only « by the existence of the jurisdictional facts prescribed by statute." These facts are not self-proving, but must be established by evidence before the surrogate ; and his adjudication thereon, even though erroneous, cannot, as a general thing, be assailed collater- ally bat Will stand until reversed upon appeal or set aside by the court that m'atle itV {Boderigas v. East Biv. Sav. Inst, QZ N. Y. 460, a&o 76 N\ YU&; O'Connor v. Huggins 118 K Y.bll; Bolton V. Schriever, 135 iV; K 65; Matter of Bucldey, 41 Hun 106.) However, there is one exception to this rule. The Surrogate's 88 PART I : GENERAL PROCEDURE. Ch. 4, § 91. Writ of Prohibition against Surrogate's Court: Mandamus. Court first fmcst have jurisdiction to act: there must be a decedent whose estate is the subject-matter of its jurisdiction ; for if the alleged decedent actually be alive any adjudication that he is dead, or that is based upon his supposed death, is open to collateral at- tack and ^111 protect nobody even though made upon evidence apparently conclusive. This seems to be an almost universal rule although, for a while, it was set aside in New York by the first Boderigas case (63 JSf. Y. 460)^ Avhich, however, was decided by a bare majority of the Court of Appeals and its force weakened by subsequent rulings upon a different phase of the same matter (76 N". Y. 316) ; and the case itself afterwards was overruled by the Supreme Court of the United States. {Scott v. McNeal, 154 U. S. 34, reversing 5 Wash. 225 ; see also Matter of Killan, 172 N". Y. 647.) However, the logic of the first Moderigas case is unanswer- able. {See sec 301 post.) Section 91. — Writ of Prohibition against Surrogate's Court : Mandamus. It is settled that a writ of prohibition will issue to prevent a judicial tribunal from assuming power over matters not within its jurisdiction or from exceeding its powers in matters of which it may take cognizance. {People ex rel. The Mayor v. Nichols, 79 N. r: 582 ; Quimbo Appo v. The People, 2(i JST. Y. 531 ; Thomson V. Tracy, 60 iV: Fi 31.) But, by this writ, the Siirrogate^s Court may not be restrained from investigating or adjudicating any fact upon which its jurisdiction depends {People ex rel. James v. Surrogate^^ Court, 36 Sun 218), nor from taking any stction, even though ef roiieoUsly, in a matter wherein it has jurisdiction {People fee rel. Patrick v. Fitzgerald, 73 App^ Div, 339, 76 Supp. 865) ; for this writ is an extraordinary remedy not inteiided for the cor- rection of errors that may be reviewed upon appeal. {People ex rel. Adams v. Westbrook, 89 JV. Y. 152 ; People ex rel. Jones v. Sherman, 66 App. Biv. 231, 72 Supp. 718, aff'd 171 N. Yi 684; People ex rel. JTummel v. Trial Term, 184 JV. Y. 30.) In People ex rel. Sprague v. Fitzgerald {lb App. Div. 539, 44 Supp. 556, affd 156 JST. Y. 689) a writ of prohibition was issued to restrain an acting surrogate from enforcing a decree providing for the removal of administrators upon an ex parte application ; but in that case the appellate court already had decided that the Ch. 4, § 91. JURISDICTION OF THE COURT. 89 Writ of Prohibition against Surrogate's Court : Mandamus. decree itself was void. The erratic mental processes of this acting surrogate, in endeavoring to enforce such a decree, are not easily comprehended. The proceedings of the surrogate or of the Surrogate's Court cannot be reviewed by mandamus, for the remedy is by appeal ; and a mandamus will not issue where the relator has an adequate legal remedy. (People ex rel. Wright v. Coffin, 7 Hun 608 ; People ex rel. Stevens v. Lott, 42 Ilmi 408, 4 St. Rep. 851 ; People ex rel. Sackett v. Woodbury, 70 App. Div. 416, 75 Supp. 236.) The func- tion of a mandamus is to compel action ; and recourse to this State writ is proper whenever the surrogate declines to proceed, a.s, for instance, where he refuses to act in a matter because of a sup- posed lack of jurisdiction. {Matter of Kelsey\. Church, 112 App. Div. 408, 98 Supp. 535.) However, as a general thing, where dis- cretion is vested in the surrogate and already has been exercised a mandamus will not be granted ; for, as against a judicial tribu- nal, its office is simply to secure action but not action in a particular way. {See People v. Superior Court of New York, 5 Wend. 114.) In Matter of David Patullo ( Tucker 99) the Supreme Court directed the surrogate by mandamus- to issue letters of adminis- tration; but it there appeared from, the papers before the court that the surrogate had no discretion in the matter. CHAPTER V. THE CITATION AND ITS SERVICE. Section 92. Character of Proceedings in Surrogate's Court. 93. Special Proceeding Commenced by a Citation. 94. Proceeding: When Commenced by Petition. 95. Of the Citation. 96. Subject Matter of the Citation. 97. Persons to be Cited. 98. Citation to Unknown Persons Constituting a Class: How Directed. 99. Forms: Citation. Subpoena upon Inquiry. 100. Personal Service of Citation upon Adult within the State. 101. Personal Service of Citation upon Infant within the State. 102. Form: Order Requiring Additional Service in case of Infant. 103. Personal Service of Citation upon Incompetent Person. 104; Form: Order Requiring Additional Service in case of Incompetent. 105. Personal Service upon Lunatic: When Dispensed with. 106. Form: Afladavit to Procure Order Dispensing with Serv- ice upon Lunatic. 107. Form: Order Dispensing with Service upon Lunatid 108. Substitute for Personal Service upon a Resident. 109. Form: Affidavit to Procure Order for Substituted Service. 110. Form: Order for Substituted Service. Jll. Pers'onal Service of Citation upon a Corporation. 112. Service of Citation by Publication. 113. Same Subject: Application for Order. 114. Order for Service by Publication: When and Sow Made. 115. Form: Order for Service out of State, or by Publlcatidrij 116. Order: How Executed. 117. Service of Petition with Citation: When Required. 118. Time when Citation must be Served. 119. Service of Citation: By whom Made. 120. Proof of Service. 121. Form: Proof of Service. 122. Waiver of Citation. 123. Form: Waiver of Citatiori. 124. Supplemental Citation: Fortf^ 125. The Return of a Citation, Section 92. — Character 6f Proceedings in Surrogate's Court. The various proceedings which may be instituted in a Surro- 90 Ch. 5, § 93. THE CITATION AND ITS SERVICE. 91 Special Proceeding Commenced by Citation. gate's Court are special proceedings, a.s distinguished from actions, and usually they are so characterized in the Code provisions authorizing or regulating them. A special proceeding in the Surrogate's Court certainly is " an ordinary prosecution " therein " for the enforcement or protection of a right " or " the redress or prevention of a wrong ", notwith- standing the definitions contained in sections 3833 and 3834 of the Code; but, unlike an action, it is instituted by a petition, upon which a citation is issued by the court or the surrogate — unless all the parties interested have joined in the petition or have form- ally waived the issuance and service of a citation. Section 93. — Special Proceeding Commenced by Citation. § 2516. Peocebdings to bh Commenced by Citation. — Except in a .case where it is otherwise specially prescribed by law, a special proceeding in a Surrogate's Court must- be commenced by tbe service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act, which may be done before actual service of the citation. (1880 ch. 178.) Thus, as it would seem, a special proceeding in the Surrogate's Court really is commenced as to the petitioner and the court by filing the petition, and as to the parties by service of the citation — or their appearance. When the petition is presented the appro- priate citation usually is issued as a matter of course ; but in some cases the surrogate may decide against the petitionerj £is, for in- stance, in a proceeding under section 2707, to discover property Withheld, where the surrogate must be satisfied that there are reasonable grounds for the inquiry {Mauran v. HawUy, 2 Dem. 396) ; or in a proceeding under section 2715, to compel an execu- tor or administrator to file a sufficient inventory, where the sur- rogate may pass upon the right of the petitioner td demand the relief sought. {Matter of Wagner, 119 iV. Y. 28.) Where the issuance of the citation follows a preliminary deter- mination by the surrogate, or rests in his discretion, it is good practice, though not required by law, to evidence that determina- tion or the exercise of such discretion by an order directing the citation to issue, whereupon, if it be signed by the clerk, no ques- tion as to its regularity can be raised successfully ; for not only may the clerk " issue any mandate to which a party is entitled as of course, either unconditionally or on the filing of any paper j " 93 PAET I : GENERAL PROCEDURE. Ch. 6, § 94. Proceeding : When Commenced by Petition. but he may also " si(/n, as clerk of the court, or as deputy clerk of the court, as the case may be, and affix the seal of the court to any letters or mandate issued from the court." (§ 2509 sub. 2.) If the citation be actually issued bi/ the surrogate such an order is needless ; but where it issues pursuant to such an order it has been "issued from the court" and suffices if signed by the clerk only. {See 2nd Roderigas case, 76 iV; T.SIQ; Mauran v. Hawley, 2 Dem. 396 ; Matter of Atwood, 10 Misc. 480, 32 Supp. 115.) Section 94.— Proceeding : When Commenced by Petition. A special proceeding may be commenced and conducted to its conclusion without any citation whatever where all the parties interested, or required to be cited, are of fall age and unite in the petition {Bailey v. Stewart, 2 Medf. 212, ajfd as Bailey v. Hilton, 14 ITun 3), or where they formally waive the issue and service of a citation as authorized by section 2528. (Sec. 126 post.) Under section 2649 a special proceeding for the revocation of probate is commenced by the presentation of a petition therefor within one year after recording the decree admitting the will to probate {Matter of Phal'en, 51 Hun 208, 4 Supp. 408, 21 St. Hep. 34) ; and by section 2517, a special proceeding is instituted by a petition within the meaning of any Code provision limiting the time for its commencement : § 2517. Id. ; Withii^ the Statute op Limitations. — The presentation of a. petition is deemed the commencement of a special proceeding, within the meaning o( any provision of this act, which limits the time for the commence- qient thereof. But in order to entitle the petitioner to the benefit of this section, a cita- tion, issued upon the presentation of the petition, must, within sixty days thereafter, he served, as prescribed in section 2520 of this act, upon the ad- verse party, or upon one of two or more adverse parties, who are jointly liable, or otherwise united in interest ; or, within the same time, the first publication thereof must be made, pursuant to an order made as presctibed in section 2522 of this act. (1880 eft. 178.) This does not require the citation to be served within sixty days after presentation of the petition, but it means that the citation must be served within sixty days after it is issued ; and this also applies to a supplemental citation, which has been issued when there has been a failure to serve all the necessary parties. (^Matter of Will of Bradley, 70 Hun 104, 23 St(pp. 1127, 53 St. Hep. 540 — overruling on this point. Fryer v. Clapp, 1 Bern. 387 ; Fountain v. Carter, 2 Hem. 313/ and Matter of Bonnet f, 1 Con. 294, 9 Supp. 459.) It has been held that a special proceeding for Ch. 5, § 95. THE CITATION AND ITS SERVICE. 93 Of the Citation. the sale of a decedent's real property for the payment of debts, seasonably begun by the filing of a petition, does not lapse even though the citation thereon be not issued until four years there- after. {Matter of Van Vleck, 32 Misc. 419, 66 Supp. 727.) And, upon the probate of a will, a special proceeding to determine the qualiflcations of any persons named therein as executors may be instituted by an affidavit setting forth, among other things, " spe- cifically one or more legal objections to granting the letters to one or more of the executors, or stating that he " {the affiant) " is advised and believes that there are such objections, and that he intends to file a specific statement of the same." (§§ 2636 d> 2641 ; see sec. 170 post.) The term " united in Interest," as used in section 2517, implies identity of interest or joint interest, as distinguished from simi- larity or community of interest. If there be two or more ad- verse parties, service upon only one of them will not be sufficient, except where the others are jointly liable with him or otherwise "united in interest.'' {Fountain v. Carter, 2 Dem. 313 ,■ see also McKenzie v. U' Amoureux, 11 JBarb. 516.) Section 95. — Of the Citation. The citation is a mandate of the court running in the name of the People and directing the parties, to whom it is addressed, to show cause why the relief demanded by the petition should not be granted. It is issued, under the seal of the Surrogate's Court, by the surrogate (§ 2481), or, in certain cases, by the clerk of the Surrogate's Court (§ 2509) ; and it should be tested in the name of the surrogate. § 2519. Contents op Citation. — A citation must be made returnable upon a day certain, designated therein, not more than four months after the date thereof ; and must specify whose estate or what subject-matter is in ques- tion. The names of all the persons to be cited, as far as they can be ascertained, must be contained in tbe citation. Where the name, or part of the name, of either of them cannot be ascer- tained, that fact must he stated In the citation. (1880 ch. 178.) It is customary to insert, in a citation directed to infants, a clause advising them that, in the event of their not appearing by general guardian or of their failure to appear and ask for the ap- pointment of a guardian, the surrogate will appoint a special guardian for them" upon the return of the citation. In this man- ner the infants have the same notice of the surrogate's purpose 84 PART I : GENERAL PROCEDURE. Ch. 5, § 96, 97. Subject- Matter of the Citation. — Persons to be Cited. to mahe the appointment as, by section 2531, they must have of an application therefor when made by a party. {Price v. Fenn, 3 Dem. 341 s. c. as Estate of Fenn, 8 Civ. Pro. Rep. 206.) After a citation has been issued if a person's name be inserted therein by any one, other than the surrogate or the clerk who issued it, the service thereof upon such person does not bring him into court. {Boerum v. £etts, 1 Dem. 471.) § 2515. Pbocess ; How Executed and Retuenable. — A citation or other mandate of a Surrogate's Court must, except wtiere it Is otherwise specially prescribed by law, be made returnable before the surrogate from whose court it was issued, and may be served or executed in any county. A warrant of attachment' must be directed to the sheriff of the surrogate's county ; who may execute it In any county, and must convey the person arrested to the place where it is returnable. (1880 eft. 178.) Section 96. — Subject-Matter of the Citation. The subject-matter of the citation is determined by the char- acter of the special proceeding as disclosed by the petition, and a general reference to this usually suffices. But where, as in a special proceeding for the probate of a will (§ 2616), particular facts are required to be stated the statute must be followed ; and in every case the relief sought by the petitioner distinctly should be set forth in it. The rules relating to amendments in other courts of record (§§ 721-730) are made applicable to the Surrogate's Court (§ 2538) and apply to a citation ; and so it is held that where a citation has been served upon executors, to whom it was directed in their individual names, without reference to their representative char- acter, the court has power to amend it by inserting a description of the executors as such. {Matter of Soule, 46 Jlun 661, 12 St. Bep. 692, aff'd 109 iVi Y. 662.) Section 97. — Persons to be Cited. As a rule every person, to be afifeeted by the relief demanded in the petition, is a proper party to be cited ; and when the pro- ceeding relates to the title or disposition of property, every per- son, who may be affected adversely thereby, is a necessary party. So far as concerns the principal proceedings provided for by the Code the necessary parties usually are indicated, as, for instance, in the proceeding to probate a will (§ 2615) or to obtain adminis- tration in case of intestacy. (§ 2663.) Moreover it is provided in section 2518 : Ch. 5, § 98. THE CITATION AND ITS SERVICE. 95 Citation to Unknown Persons Constituting a Class ; How Directed. Where it is prescribed, in any provision of tbls chapter, that a petition must pray that a person, or that creditors, next of kin, legatees, heirs, dev- isees, or other persons constituting a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. (See sec. 98 post.) Where the statute provides that a person, or persons constitu- ting a class, must be cited, the requirement really is that the cita- tion not only must be" duly served upon, but also must be directed to, him or them either by name, or, if the name be unknown, by a general description " or other sufficient identification " ; for service of the citation on a person not named, described nor otherwise identified therein, neither brings him into court nor confers juris- diction over him. And where, before service of the citation upon him, a party named therein has died, service thereof on his per- sonal representative confers no jurisdiction. {Boerum v. Betts, 1 Bern, 471 ; Matter of Georgi, 35 Misc. 685, 72 Sup2}. 431.) The only parties to a special proceeding in the Surrogate's Court are those persons who are named, described, or otherwise identified in the original citation, or in a supplemental one, or who have been permitted to intervene. Section 98. — Citation to Unknown Persons Constituting a Class : How Directed. § 2518. Peesons CoNSTiinTiNG A Class; When to be Cited; Citation WHEN Some abb Unknown. — Where it is prescribed, in any provision of this chapter, that a petition must pray that a person, or that creditors, next of kin, legatees, heirs, devisees, or other persons constituting a class, may be difed for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be' cited constitute a class, the petitioner must set forth. In an affidavit, the name of each of them, unless the name, or part of the name, of one or more of them cannot, after diligent inquiry, he ascertained by him ; in which case, that fact must be set forth and he may also allege that there may be others whose existence is unknown to him; and the surro- gate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his discretion, iss'.'.e a subpoena, requiring any person to attend before him to testify respecting the matter. H he is satisfied, of the reasonable dUigence and good faith of the petitioner the citation may be directed to the persons, whose names are unascertained and also to all other persons belonging to such classes by a general descrip- tioHj showing their connection with the decedent, or interest in the property or matter in question ; or other sufllcient identification. A citation, thus di- rected, has th2 same force and effect, as If it was directed to the persons intended, by their names ; and where the persons so intended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named in the citation. A petition, duly verified, is deemed an affidavit, within the meaning of this section. (1908 eft. 272.) The matter above italicized was added by the amendment of 1908 which seems to provide that persons may be cited even 96 PART I : GENERAL PROCEDURE. Ch. 6, § 99. Forms : Citation. Subpoena upon Inquiry. though their existence be unknown to the petitioner. Moreover, it will be observed that the surrogate is to be satisfied only « of the reasonable diligence and good faith of the petitioner " before permitting the citation to be directed to persons by a general de- scription " or other sufficient identification." Precisely what has been accomplished by this amendment is a question that awaits a judicial answer. But the section is silent as to the character and extent of this inquiry by the surrogate. And no provision is made to preserve his determination thereon, otherwise than by the citation itself thereafter issued and directed to a person or persons " by a gen- eral description, showing their connection with the decedent, or interest in the property or matter in question ; or other sufficient identification." However, " the names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation ; " and " where the name, or part of the name, of either of them cannot be ascertained, that /ac« must be stated in the citation." (§ 2519.) But a failure to state in a citation the proper name of a party may be cured by amendment, even after service of it upon him. (§§ 2538 ; 721-723 ; Stuyvesant v. Weil, 167 IST. Y. 421.) It has been held in a proceeding for the probate of a will, where the citation was directed to " heirs and next of kin of the deceased, whose names and places of residence are unknown," that this is a sufficient designation of the unknown children of a deceased brother of the testator ; and that, if the citation be served in the prescribed manner, such persons will be concluded by the decree precisely as though their names had been known and the citation had been directed to them specially. {Matter of Ellis, 4. Supp. 180, 22 St. Bep. 77 ; see Matter of Killan, 172 N. T. 547, 556.) Section 99.— Forms : Citation. Subpoena upon Inquiry. {Citation.) THE PEOPLE OP THE STATE OF NEW YORK, rpjj (Name or describe persons who are to he made parties to tile proceeding. Where any such persons, constituting a class, are unknown, give description showing tUir connection with the dece- dent or their interest in tlie property or matter in question, or other swment identification under § 3518, as, for instance): and to the heiM and next of kin of said decedent whose names are unascertained Ch. 5, § 99. THE CITATION AND ITS SERVICE. 97 Forms : Citation. Subpcena upon Inquiry. and whose places of residence are unknown, but who are the heirs and next of kin of , a deceased son of- said decedent, they being persons whose names cannot be ascertained.) Send Greeting: You and each of you are cited hereby to appear before our surrogate in the Surrogate's Court in and for the county of at his ofBce In the city of , N. Y., on Monday the day of 19. ., at ten o'clock in the forenoon of that day, then and there to show cause why (.Set out relief demanded in the petition or sought in the special proceeding. W'here any of the persons to te cited afre infants, it is customary and advantageous to add the following or a similar clause:) And each of you, who may be under the age of twenty-one years, is required hereby to appear then and there by your general guardian, if you have one, or, if you have none, to appear and apply for the appoint- ment of a guardian; and, in case of your neglect or failure so to do, you are notified hereby that a special guardian will thereupon be appointed by our surrogate to represent you in this proceeding. In testimony whereof, we have caused the official seal of the Surrogate's Court of county to be hereunto affixed. Witness, Hon Surrogate of the County XL. S.) of , at the Surrogate's Office in the City of , this the day of , 19 . . . Surrogate. (Or Clerk of Surrogate's Court.). '{Sulpmna upon Inquiry.)' THE PEOPLE OF THE STATE OF NEW YORK To Send Greeting: Whereas has presented to the Surrogate's Court of county a written petition, duly verified the .... day of 19.., praying for a decree {briefly state purpose) and also praying that certain persons named therein may be cited; and it appearing thereby that all persons who are (set forth the classes accord- ing to the fact, as, for instance: heirs and next of kin of deceased,) and also that the names of one or more of them cannot, after diligent inquiry, be ascertained by said petitioner and also that there may be others whose existence is unknown to him; and Whereas, pursuant to section 2518 of the Code of Civil Procedure, our surrogate is about to inquire into this matter and for the purpose ©f such inquiry requires your testimony. Now Therefore, We command yoit, that, all business and excuses being laid aside, you and each of you appear and attend before the (undersigned) surro- gate of the county of at the surrogate's office in the city of N. Y., on the day of , 19. ., at . . o'clock in the noon to testify respecting the matter, (If production of a book 98 PART I : GENERAL PROCEDURE. Ch. 5, § 100. Personal Service of Citation upon Adult within the State. or paper is desired, add: and you are required hereby to bring with you, and then and there produce describe book or paper.) And for a failure to attend you will be deemed guilty of contempt of court, and liable to pay all damages sustained in consequence by the party aggrieved, and forfeit fifty dollars in addition thereto. .Witness, Hon Surrogate of our County of at the city of N. Y., on the day of , 19... Surrogate. Section lOO. — Personal Service of Citation upon Adult within the State. S 2520. Citation ; How Served. — Except where special provision Is other- wise made l)y law, service of a citation, within the State, must be made upon' an adult person, or an infant of the age of fourteen years or upwards, hy delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns, with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge, in time for him to attend at the return day. A citation must be so served, if within the county of the surrogate, or an adjoining county, at least eight days before the return day thereof ; if in any other county, at least fifteen days before the return day ; unless, in either case, the person served, being an adult, and not incompetent, assents in writing to a service within a shorter time. Any person, although a party to the special proceeding, may serve a, cita- tion. (1880 ch. 178.) It has been held that personal service of a citation upon a non- resident is void even if made within this State {Matter of Porter, 1 Misc. 489, 22 Supp. 1063, 54 St. Rep. 302) ; but the statute does not warrant this decision which has been disapproved by later authority. {Matter of Washburn, 12 Misc. 242, 34 Supp. 44, 67 St. Rep. 895.) Where a citation returnable September 22 had been served August 5 upon a resident of the county — he being at the time ' absent in England — by leaving a copy at his residence with the person to whom its care had been entrusted, and the decree was not entered until two months after the return day, it was held that the service had been made, as required by section 2520, under such circumstances, that the surrogate had " good reason to believe that the copy came to his knowledge, in time for him to attend at the return day." {Mead v. Miller, 8 Bern, hll ; see also Harrison v. Clark, 20 Hun 404, afd %1 IT. T. 572.) '^ I 2527. Id. ; Upon Infant, etc. ; Additional REqniREMENT in Cehtain Cases. — Where a person, cited or to be cited, is an infant of the age of four- Ch. 5, § 101. THE CITATION AND ITS SERVICE. 89 Personal Service of Citation upon Infant within the State. teen years or upwards, or where the surrogate has, in his opinion, reasonable grounds to believe, that a person, cited or to be cited, is an habitual drunlsard, or for any cause mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion, with or without an application theretor, and in the interest of that person, make an order requiring that a copy of the citation he delivered, in behalf of that person, to a person designated in the order; and that service of the citation shall not be deemed complete until such de- livery. Where the person, cited or to be cited, is an infant under the age of fourteen years, or a person judicially declared to be incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunljenness, and the surrogate has reasonable ground to believe that the interest of the person, to whom a copy of the citation was delivered, in behalf of the infant or incompe- tent person, is adverse to that of the infant or incompetent person, or that, for any reason, he is not a fit person to protect the latter's rights, the surro- gate may liljewise malte such an order ; and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the in- competent person, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property. (1880 ch. 178.) These provisions authorize an additional service of a citation ; but its regular and ordinary service upon the party himself is not dispensed with. (Matter of Cortwrigkt, 3 Dem. 13.) Section loi. — Personal Service of Citation upon Infant with- in the State. If a party be an infant, of the age of fourteen years or upwards^, service of a citation upon him, within the State, must be made in the same manner as upon an adult. (§ 2520.) In addition to such service the surrogate may in his discretion, witli or without an application therefor and in the interest of the infant, make an-, order requiring that a copy of tlie citation be delivered, in behalf of the infant, to a person designated in the order, and that service of the citation shall not be deemed complete until sucli delivery. (§ 2527 ; see sec. lOO ante.) But, if the infant party be under the age of fourteen years, per- sonal service of a citation upon him is regulated by section 2526 and must be made in like manner as though it were a summons in^ an action. 5 2526. Sekvicb upon a Cohpohation, Infant, Lonatic, etc. — Service of a citation must be made upon an inf.".nt under the age of fourteen years, a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, or a corporation, in the manner prescribed for personal service of a summons upon such a person, or upon a corporation, in article first of title first of chapter fifth of this act. (1880 ch. X78.) The references are to sections 426 and 428 ; and the service is made as follows : 'by delivering a copy of the citation within the 100 PAET I : GENERAL PROCEDURE. Ch. 5, § 101. Personal Service of Citation upon Infant within the State. State " to the infant in person, and also to his f atlier, mother, or ' guardian; or if tliere is none within the State, to the person having the care and control of him, or with whom he resides, or in whose service he is employed" (§ 426) ; and where the surrogate has reasonable ground to believe that the interest of the person, other than the infant, to whom a copy of the citation has been delivered, is adverse to that of the infant, or that for any reason he is not a fit person to protect the latter's rights, the surrogate may in his discretion, without an application therefor and in the infant's interest, make an order requiring a copy of the citation • to be delivered also^ jn behalf of the infant, to a person designated in the order, and that service of the citation shall not be deemed complete until it is so delivered. (§§ 428 & 2527; sec- lOO ante.) Where the infant is und^r fourteen years of age, to make a good service, it is essential that a copy of the citation be .delivered to - him and also to the father, mother, guardian, or other perspn specified. Service upon the infant alone is not sufficient {Ingersoll V. Mangam, 84 ]SF. Y. 622 ; PincJcney v. Smith, 26 Hun 524) and cannot be made good by any appointment of a special guardian. {Hogle V. Hogle, 49 Hun 313, 17 St. Rep. 580.) Indeed, unless an infant party has been duly served with a citation the Surro- gate's Court obtains no jurisdiction over him — not even to appoint a special guardian. {Davis v. Crandall, 101 N. Y. 311 ; Crouter v. Crouter, 183 JVi Y. 56; Potter v. Ogden, 136 JST. Y. 384 ; btct see sec 175 post) Section 2527 authorizes an additional service of the citation by the delivery of a copy thereof to a designated person in behalf of the infant ; but its regular service upon the infant himself is not^ dispensed with. (Matter of Cortwright, 3 Dem. 13.) 'j Care should be exercised in observing each statutory require- ment as to the service of a citation upon an infant, for a defect in this respect can neither be waived nor cured by appearance or stipulation or otherwise. Moreover, any recital in a decree to the effect that an infant party has been duly cited is only pre- sumptive evidence (§ 2473) and may be rebutted. (Hood v. Hood, Sb JV. Y. 561.) One of many queer things in the Code is that it permits personal service of a citation to be made upon an infant, if he be ';o, *\ 4-'' Ch. 5, §§ 103, 103. THE CITATION AND ITS SERVICE. 101 Form : Service ia case of Infant. — Service Incompetent upon Person. fourteen years old, without deliverj' thereof to him while it re- ( / oo (if quires an actual delivery to him if he be under that age. Section 102. — Form . Order requiring Additional Service in case of Infant. {Title of Proceeding.) It appearing to my satisfaction that , . . , , a person to be cited in tlie above entitled proceeding, is an infant of the age of fourteen years and upvfards, Now, Therefore, in the interest of said infant, I DO HEREBY OEDBR that a copy of the citation herein be delivered, in behalf of said infant, to , residing in the city of , N. Y. , and that service of said citation upon said infant, shall not be deemed complete until such delivery. Dated at , N. Y., 190. .. Surrogate. (Title of Proceeding.) It appearing to my satisfaction that a person to be cited in the above entitled proceeding, is an infant under the age of fourteen years and that in the service of the citation upon him a copy thereof was delivered to , bis father, pursuant to the statute in such case made and provided, and, I having reasonable ground to believe that the interest of said is adverse to that of said infant. Now, Therefore, in the interest of said infant, I DO HBKBBY OKDBR that a copy of the citation herein be delivered, in behalf of said infant party, to residing in the city fyf N. Y. , and that service of said citation, upon said infant party, shall not be deemed complete until such delivery. Dated at , N. Y., ,19... Surrogate; As the order is discretionary with the surrogate, who may make it upon his own motion, either form will suffice even when granted upon an applicationtherefor. Section 103.— Personal Service of Citation upon Incompetent Person. Personal service of a citation upon a person judicially declared t6 be incompetent to manage his affairs by reason of lunacy, 102 PART I : GENERAL PROCEDURE. Ch. 5, § 104. Form : Order requiring Additional Service in Case of Incompetent. r ■ ? idiocy or habitual drunkenness is made by delivering a copy of * such citation, within the State, to the incompetent person and also to his committee. (§§ 2526 <& 426 ; see sec. lOl (mte.) But in certain cases the court may dispense with such delivery to the lunatic. (§§ 2526 <& 429; see sec. lOSpost.) Where there is reasonable ground to believe that the interest U of the committee, to whom a copy of the citation has been deliv- ered, is adverse to that of the incompetent person, or that for any reason he is not a iit person to protect the rights of such incom- petent, the surrogate may in his discretion, with or without an application therefor, and in the interest of such incompetent person, make an order requiring a copy of the citation to be also delivered in his behalf to a person designated in the order, and that service of the citation shall not be deemed complete until so delivered ; and as a part of such order, or by a separate order made in like manner at any stage of the proceeding, the surrogate may appoint a special guardian ad litem to conduct the proceeding in behalf of the incompetent person, to the exclusion of the committee, and with the same powers and subject to the same liabilities, as a _^ommittee of the property. (§§ 2527, 2526 <§ 428). Where, in the surrogate's opinion, the person to be cited is an habitual drunkard, or for any cause mentally incapable adequately to priJteot his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion, with or without an application therefor, and in the interest of that person, make an order requiring that a copy of the citation be delivered, in behalf of that person, to a person designated in the order ; and that service of the cita- tion shall not be deemed complete until such delivery. (§ 25S7 ; see sec. loo ante.) Section 104.— Form : Order requiring Additional Service in Case of Incompetent. {Title of Proceeding.) Having, in my opinion, reasonable grounds to believe that , a person to be cited in the above entitled proceeding, is an' habitual drunkard {or, mentally incapable adequately to protect Ms right^ because of •■■■) although not judicially declared to be incompetent- to manage his affairs, N o w, T h e r 6 f o r e, in the interest of said person, I DO HEHBBT ORDER that a copy of the citation herein be delivered, in be- half of said incapable party, to , residing in the city (,j N. Y., and that service of said citation, upon said incapable party, shall not be deemed complete until such delivery. Surrogate. Ch. 5, §§ 105, 106. THE CITATION AND ITS SERVICE. 103 Personal Service upon Lunatic— Form; AflSdavit to Procure Order. (Title of Proceeding.) It appearing to my satisfaction tliat a person to be cited in the above entitled proceeding, is a person judicially declared to be incompetent to manage his affairs by reason of lunacy (or, idiocy or, habitual drunkenness), and that in the service of the citation upon him a copy thereof was delivered to his committee, pursuant to the statute in such case made and provided, and, having reasonable grounds to believe that the interest of said is adverse to that of said Incom- petent person, N o w"T h e r e f r e, in interest, I DO HEREBY ORDER that a copy of the citation herein be delivered, in be- half of said incompetent person, to , residing in the city of N. Y., and that service of said citation, upon said incompetent person, shall not be deemed complete until such delivery. Dated at , N. Y., 19... 8um)gate> As the order is discretionary with the surrogate, who may make it upon his own motion, either form will suffice even when granted upon an application therefor. Section 105. — Personal Service upon Lunatic : When Dis- pensed With. It is provided in section 2526 that service of a citation must fee made upon a " person judicially declared to be incompetent to manage his affairs by reason of lunacy, * * * in the manner pre- scribed for personal service of a summons upon such a person, in article first of title first of chapter fifth " of the Code. That article includes section 429 as follows : § 429. Id. ; When Delivery of Copy to Lunatic Dispensed With. — Where the defendant has been JiidiciaHy declared to be incompetont to manage his affairs, in consequence of lunacy, and it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to' him, in person, will tend to aggravate his disorder, or to lessen the probability of his re-,, covery, the court may make an order, dispensing v.'ith such delivery. In that' case, "a delivery of a copy of the summons, to a committee duly appointed for him, is sufficient personal service upon the defendant. (1S76 ch. 448.) Section io6. — Form : Affidavit to Procure Order dispensing with Service upon Lunatic. tfTitle of Proceeding.) County: ss. .^ , of the city of , in said county. 104 PART I : GENERAL PROCEDURE. Ch. 5, § 107. Form : Order dispensing with Service upon Lunatic. being duly sworn, says : tliat he is a practicing pliysician resident in the city of in said county, and is well acquainted witli , one of the persons to whom the citation in the above entitled proceeding is directed; that he now is, and for a long time lias been, his family physician; that said is a lunatic, and, as deponent is informed and verily believes, has been judicially declared to be incompetent to manage his affairs by reason of lunacy, in proceedings wherein one of said city of has been duly appointed to be the committee of the person and estate of said ; and that, in the opinion of deponent, the mental condition of said is such that the delivery of a copy of said citation to him in person, will tend to aggravate his disorder, or to lessen the probability of his recovery. That the following are the reasons for deponent's opinion, viz : (State tliem.) {Jurat.) {Signature.) Proof also should be made, by affidavit, or otherwise, that the party has been judicially declared to be incompetent to manage his affairs by reason of lunacy, unless this fact already has appeared in the proceeding. Section 107. — Form: Order dispensing with Service upon Lunatic. At a Surrogate's Court, in and for the County of , . . , , fheld at the Surrogate's office in the City of .... . ., K. Y,, the .... day of 19. .. Present, Hon , Surrogate. {Title of Proceeding.) _ , Upon reading and filing the affidavit of , verified , 19 . . , (and the affidavit of verified , 19. .,) whereby it appears, among other things, that .... one of the persons to whom the citation in the above entitled proceeding is directed, is a lunatic and has been judicially to be incompetent to manage his affairs, by reason of lunacy, in proceedings wherein one has been duly appointed to be the committee of the person and estate of said ; and that the mental condition of said .is such that the delivery of a copy of said citation to him, in person, will tend to aggravate his disorder or to lessen the probability of his recovery ; Now, Therefore, on motion of , Esq., attorney for the petitioner in the above entitled proceeding. It is hereby ordered that the delivery of a copy of said citation to. M' Ch. 6, §'108. THE CITATION AND ITS SERVICE. 105 Substitute for Personal Service upon a Resident. said , in this proceeding, be, and it hereby is, dispensed with. Surrogate. Section io8. — Substitute for Personal Service upon a Resi- V ^1 dent. § 2521. Substitute for Peesonal Service upon a Resident. — Where It appears, by afBdavit, to the satisfaction of the surrogate from whose court a citation issued, that proper and diligent etEort has been made to serve It upon a resident of the State, as prescribed in the last section ; and that the person to be served cannot be found, or, if found, that he evades service, so that it cannot be made ; the surrocate may make an order, directing that service thereof be made, as prescribed in section 436 of this act; and the provisions of that section and of section 437 of this act, relating to the service of a summons, apply to the service of a citation, pursuant to an order made as prescribed in this section. (1880 ch. 178.) The sections referred to are : § 436. Service op Summo>:s. how Made. — The order must direct that th« eervice of the summons be made, by leaving a copy thereof, and of the order, at the residence of the defendant, with a person of proper age, if upon reason- able application, admittance can be obtained, and such person found who will receive it ; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly enclosed in a post-paid wrapper, addressed to him, at his place of residence, in the posf-otEce at the place where he resides ; or upon proof being made by affidavits that no such residende caa be found, service of the summons may be made iu such manner as the court may direct. (1896 ch. 562.) § 437. Papers "fo be Filed ; Proof of Service. — The order, and the papers upon which it was grfented, must be filed, and the service must be made, within ten days after the ordfer is granted ; otherwise the order becomes inoperative. On filing an affidavit, showing service according to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an order for that purpose, made aa prescribed in the next section. (1876 ch. 448.) Section 2521 confers upon the surrogate the authority, in this particular, possessed by a judge of the Supreme Court ; and, upon the service of the citation as provided therein, the court acquires jurisdiction of the person and fflay proceed with like effect as though the citation had been served personalhj. {Scharmann V. Schoell, 38 App. Div. 528, '56' Supp. 498.) It will be observed that under section 2521, with its reference to sectiott- 2520, substituted service of the citation may be made upon an infant of the age of fourteen years or upwards, as well as upon an adult ; but no provision seems to be made for sub- stituted service upon an infant under fourteen years of age. Apparently such an infant is excluded by the terms of the sec- tion ; for it only authorizes the substituted service after proper and lOe PART I; GENERAL PROCEDURE. Ch. 5, § 109, 110. Forms: Affidavit to Procure Order for Service. -^Orier for Substituted Service. diligent effort has been made to serve the citation upon a resident of the State, in the manner prescribed in section 2520, which only applies to adult persons and infants of the age of fourteen years or upwards. It has been held that, under sections 436 and 437, substituted service of process may be made upon an infant who is being con- cealed by its mother. {Steinhardt v. Baker, 25 App. JDiv. 197, 49 Supp. 357.) It is necessary only to deposit in tlie post-office, a copy of the citation and order for substituted service in case a copy thereof cannot be left with a person of suitable age at the residence of the party to be cited. ( Overton v. Barclay, 89 Hun 611, 35 Supp. 326, 69 St. Rep. 716.) Section — 109.— Form : Affidavit to Procure Order for Sub- \ stituted Service. {Title of Proceeding.) - -^v-.-.^^ise^r^-^ ■ . r County: ss. . . . , of the city of in said county, being duly sworn, says : that, on the day of , 19 . . , the citation In the above entitled special proceeding, of which a copy is annexed, hereto was delivered to him for service upon who resides at No, , street in said city of N. Y. , and is one of the persons to whom said citation is directed ; that deponent is well acquainted with said and has made proper and diligent effort to serve said citation upon him, but that he cg,nnot be found by deponent {or, that he evades such service so that it cannot be made) ; that deponent, for the pur- pose and with the intention of serving such citation upon said , has made the foUowiag efforts and inquiries to find him and to effect such service, viz : {State facts showing efforts to find the missing person and to make service upon Ji/im.) {Jurat) '-- "-.^ii'riva -f».> ; - {Signature) Section no. — Form: Order for Substituted Service. {Title of Proceeding.) It appearing by the affidavit of verified the .... day ' of 19.., that the citation heretofore issued in the above entitled proceeding, of which a copy is annexed thereto, has been delivered to him, for service upon who resides at No Street in the city of , N. Y. , and is one of the persons to whom such citation is directed ; and that proper and diligent effort tp serve such citation upon said has been made, !^ Ch. 5, § 111. THE CITATION AND ITS SERVICE. 107 Personal Service of Citation upon a Corporation. but that he cannot be found (or that he' evades such service so that it cannot be, made) Now, Therefore, I DO HEREBY ORDEK that servlce of said citation upon said be made by leaving a copy thereof and of this order at the residence of said No street, in the city of , N. Y., with a person of proper age, if upon reasonable application, admittance can be obtained and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of said 's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper addressed to him at his -said place of residence, In the post-office at said city of , N. Y. Dated at , N. Y., the .... day of , 19. .. Surrogate. Section iii.— Personal Service of Citation upon a Corpora- t}f , tion. Service of a citation within the State upon either a domestic or a foreign corporation is made in the manner prescribed by sectiofa^ 431 and 432 for the personal service of a summons upon such a corporation. (§ 2526 ; see sec. id ante.) Tliese sections are : _ % isi. How Personal Seevice op Somiions made upon a Domestic Cob- POKATION. — Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy tliereof, within the State, as follows : . __ 1. If the action is against ihe ftiayor, alderman, and commonalty of the city of New York, to the mayor, comptroller, or counsel to the corporation. 2. It the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk ; or, i£ the city lacks either of those officers, to the officer performing corresponding functions, under another name. 3. In any other case, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent. (1876 eft. 448.) § 432. Id. ; Upon a Poeeign Coepoeation. — Personal service of the sum- mons upon a defendant, being a foreign corporation, must he made by delivering a copy thereof, within the State, as follows : \'. To the president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary ; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name. 2. To a person designated for the purpose as provided in section 16 of the deneral Corporation Law. . , , 3. It such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the State, or the cause oiE action arose therein ; to the cashier, a director, or a managing agent of the corporation, within the State. 4. If the person designated as provided in section 16 of the General Corpo- ration Law dies or removes from the place where the corporation has Its pMnclpal place of business within the State and" the corporation does not within 108 PART I : GENERAL PROCEDURE. Ch. 5, §§ 113, 113. Service of Citation by Publication.— Same Subject: Application for Order. thirty days after such death or removal designate in lilie manner another person upon whom process against it may be served within the State, process against the corporation in an action upon any liability incurred within this State or if the corporation has property within the State may after sucli death, removal or revocation and before another designation is made, be served upon the Secretary of State. (1900 ch. 65.) In case of a foreign corporation the provisions of section 432, subdivisions 2 and 4, witli reference totlie designation of a person upon whom service of process can be made, are important only when none of the head officers mentioned in subdivision 1 is within the State. Subdivision 1 is exceedingly broad ; but subdivision 3, which authorizes service upon a director, cashier, or managing agent, is limited to cases where " the corporation has property, within the State or the cause of action arose therein " and when no designation has been made and neither of the head officers specified in subdivision 1 can be found within the State. (Grant V. Cananea Con. Copper Co., 189 N. Y. 241, 248.) Section 112.— Service of Citation by Publication. § 2522. Seevicb by PnBLiCATtoN. — The surrogate, from whose court a cita- tion is issued, may make an order, directing the service thereof without the State, or by publication, in either of the following cases ; 1. Where it Is to be served upon a foreign corporation, or upon a person who is not a resident of the State. 2. Where the person to be served, being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of process. 3. Where the person to be served, whether an adult or an Infant, Is a rest- dent of the StatB, but is temporarily absent therefrom. 4. Where the person to be served is a resident of the State, or a domestic corporation, and an attempt was made to serve a citation, issued from the same Surrogate's Court, upon the presentation of the same petition before the expiration of the limitation applicable to the enforcement of the claim set forth In the petition, as fixed in chapter fourth of this act ; and the limitation would have expired, within sixty days next preceding the application for the order, if the time had not been extended by the attempt to serve the citation. (1881 eft. 664.) § 2523. Id. ; Upon Pebsons Unknown, etc. — The Surrogate may also make an order, directing the service of a citation without the State, or by publication, In either of the following cases : 1. Upon a party to whom a citation is directed, either by his' full name or part of his name, where the surrogate is satisfied, by affidavit, that the residence of that party cannot, after diligent inquiry, be ascertained by the petitioner. 2, Upon one or more unlsnown creditors, next of bin, legatees, heirs, devisees, or other persons included in a class, to whom a citation has been directed, designating them by a general description, as prescribed in this article. (1880 eft. 178.) Section 113. — Same Subject : Application for Order. The procedure for service of a citation, without the State or by publication, is not quite so .strict as is that (§§438-440) C'H. 5, § 114. THK CITATION AND ITS SERVICE. 109 Order for Service by Publication : When and how Made. regulating the similar service of a summons. In the latter case usually it is necessary to show, among other things, that "the plaintiff has been or ■will be unable, with due diligence, to make personal service of the summons " (§ 439); and Avhere the affidavit alleges merely that a defendant resides in another State and that " the plaintiff will be unable with due diligence to make personal service of the summons within the State " upon the defendant, but discloses no effort to find such defendant or to serve him with a summons in this State, and gives no reason why such an effort if made will be useless, it is insufficient to confer jurisdiction, and an order for publication of the summons based thereon is void. {Kennedy v. Lamb, 182 X. Y. 228.) On the other hand, in regard to a citation, the surrogate is authorized by sections 2522 and 2523 to " make an order directing the service thereof without the State, or by publication," in either of several cases specified therein ; and the prerequisite to the order is merely that " the party applying therefore must produce proof, by affidavit or otherwise, to the satisfaction of the surrogate, that tliQ^ case is one of those specified in those sections." (§ 2524 ; see sec. Wi^post.) This proof may be contained in the sworn peti- tion, upon which the citation is issued, or in a separate affidavit; and it suffices if in either manner the facts are clearly set forth which authorize the surrogate to make the order. Section 114.— Order for Service by Publication : When and how Made. § 2524. Obder, When and How Madit, etc. — Where an order, directing tlie service of a citation witliout the State, or by publication, is made as prescribed in eitlier of the last two sections, the party applying therefor must produce proof, by affidavit or otherwise, to the satisfaction of the surrogate, that the case is one of those specified in those sections. • The order must direct that service of the citation, upon the person named or described in the order, be made by publication of- the citation in two news- papers, designated as prescribed in this article, unless from the petition it appears that the estate amounts to less than two thousand dollars, in which case only one newspaper shall be designated, for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks ; or, at the option of the petitioner, by delivering a copy of the citation, without the State, to each person so named or described, in person, and if the person to be served is an infant under the age of fourteen years, also to the person with whom he is sojourning or, if the' service is made upon a corporation, to an officer thereof specified in section four hundred and thirty-one or four hundred and thirty-two of this act. It must also contain either a direction that on or before the day of the first publication, the petitioner deposit, in a specified post-office, a copy of the cita- tion and of the order, contained in a securely closed post-paid wrapper, directed to the person to be served, at a place specified in the order, and, if the person to be served is an infant under the age of fourteen years, a further copy, lilje- 110 PART I : GENERAL PROCEDURE. Ch. 5, § 114. Order ,lor Service by Publication : When and how JNIade. wise contained in a securely closed post-paid wrapper, directed to the person with whom such infant is sojourning or, a statement that the surrogate, being satisfied, by the aflJdavit upon which the order was granted, that the petitioner cannot, with reasonable diligence, ascertain a place or places where the person to be served would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein. (1899 ch. 606.) § 2535. Publication of Citation, etc. — Where a provision of this chapter, or an order made pursuant to such a provision, directs the publication of a citation, notice, or other paper, or the service thereof by publication, the publication must be made in a newspaper published in the county. The surrogate may, also, in his discretion, direct the publication thereof in any other newspaper published in the same or another county, as he deems proper, for the purpose of giving notice to the persons intended to be served or notified. If no newspaper is published in the county, the citation, notice, or other paper, must be published in the newspaper printed at Albany, in which legal notices are required by law to be published. (1880 ch. 178.) The statutory requirements must be observed strictly or the order may be invalid. It has been held that the service is in- effectual where the order fails to specify the post-oflSce in which the papers are to be deposited, or to direct that a copy of the order be mailed, to the party to be served, on or before the day of the first publication of the citation (Eleventh Ward BanJc v. Powers, 43 App Div. 178, 59 Sitpp. 314), or where the order directs the deposit of a copy of the citation addressed to the person, to be served therewith, at a place other than the one named in the petition as his residence. (Matter of Harlow, 73 Hun 433, 26 Supp. 469, 56 St. Rep. 33.) Howevei'j the order need not direct a pub-- Kcation of the- citation, or a delivery of a copy thereof without the State to the person to be served. The election as to the mode of service may be made when the order is granted, and it may direct service by publication alone or by delivery of a copy of the citation without the State alone ; and where an order directing either mode, without reference to the other in the alternative, is. followed, a good service will be secured. (Matter of JField,. 131 JV. Y. 184, overruling Bitten v. Griffith, 16 Hun 454.) TTnd'er section 440 the order must require the publication of a summons to be made "not less than once a week for six suc- cessive weeks " ; and service is not complete until the expiration of at least six full weeks from the day of the first publication. (Market Nat. Bank v. Pacific Nat. Bank, 89 JV: K 397.) By sec- tion 2524, the order must require the publication of ' a citation to be made " not less than once in each of six successive weeks " ; Ch. 5, § 115. THE CITATION AND ITS SERVICE. Ill Form : Order for Service out of State, or by Publication. but although this phraseology differs somewhat from that in sec- tion 440 its meaning is the same. Section 2524 requires the order to direct the service to " be made by publication of the citation in two newspapers, desig- nated as 2^resx:rihedin this article, unless from, the petition it appears that the estate amounts to less than two thousand dollars, in which case only one newspaper shall be designated." This evi, dently has reference to former section 2536 wliicb required a citation to be published in the newspaper at Albany, wherein legal notices are required by law to be published. But that section has been repealed (1900 ch. 572), without any corresponding modi-, fication of section 2524, and so the publication of a citation must still be made in tvjo newspapers, one of which must be published in the county — if any newspaper be published therein — and the other may be published in the same or another county as the surrogate deems proper. If no newspaper is published in the county, the citation " must be published in the newspaper printed at Albany, in which legal notices are required by law to be published." (§ 2535.) Section 115. — Form: Order for Service out of State, or by Publication. tTitle of Proceeding.) Upon the petition of , filed in our Surrogate's Court on the .... day of , 19. ., and upon the citation issued thereon on that day, and upon reading and filing the affidavit of , verified on the day of , 19. ., whereby It appears, among other things, that this special proceeding has been instituted for (state purpose briefly) and that, on the day of 19. ., tJiere was duly issued out of our Surrogate's Court a citation directed to the persons interested therein citing each of them to attend before the surrogate in our Surrogate's Court on the day of , 19.., then and there to show cause why (state object); and whereby it appears also to my satisfaction that among the persons named in said citation, and to whom it is specifically directed, is -and that he is not a resident of the State, but resides without the State, at ; (On is , who is a resident of the State of New York, but that he has departed therefrom with intent to avoid the service of process, and that the petitioner cannot, with reasonable diligence, ascertain a place or places where said •would prob- ably receive matter transmitted through the post-offlee); 112 PART I : GENERAL PROCEDURE. Ch. 5, § 115. Form : Order for Service out of State, or by Publication. (Or, is , who resides in the State of New York, but that he is temporarily absent therefrom and is at present sojourning at ); (Or, otherwise state the circumstances bringing the case within any of the other provisions of sections 2522 or 2523); and that the case is one of those specified in section 2522 (or section 2523) of the Code of Civil Procedure, (add in appropriate case: and whereby it further appears that the entire estate of the decedent amounts to less than two thousand dollars.) Now Therefore, on motion of , Esq., attorney for said petitioner, I DIRECT AND IT IS HEREBY ORDERED, that sGrvice of the above men- tioned citation upon said be made by publi- cation thereof in two newspapers to wit: in the and in the , both published in the city of , county of and State of New York, (orae newspaper may he published outside the county, § 2535) once in each of six successive weeks, that being a time which I deem reasonable; or, at the option of the peti- tioner, by delivering a copy of the citation, without the State, to said in person {if is an infant under the age of 14 years, add: and also to , the person with whom said is sojourning) ; (*) and I ALSO DIRECT, AND IT IS FURTHER ORDERED, that On Or before the day of the first publication the said petitioner deposit in the post-ofBce in the city of , county of and State of New York, a copy of the citation and of this order, contained in a securely' closed post-paid wrapper, directed to said at (If is an infant under the age of 14 years, add: and that, at the same time, he also deposit in said post-office a further copy of the citation and of this order, likewise contained in a securely Closed post-paid wrapper, directed to , the person with whom said is sojourning, at ) (If address of cannot &e ascertained, substitute from (*): and, being satisfied by the affidavit upon which this order is granted, that the petitioner cannot, with reasonable diligence, ascertain a place or places where said would probably receive matter transmitted through the post-office, I do hereby dispense with the deposit of any papers therein.) Dated at . .j^ , N. Y., the day of 19. .. Surrogate. The order need not direct service of the citation by publication or by delivery thereof without the State but it may direct either Ch. 5, § 116. THE CITATION AND ITS SERVICE. 113 Order: How Executed. mode alone, without any reference to the other ; and service made accordingly will suffice. {Matter of Field, 131 N. Y. 184.) If it appears from the petition that the estate amounts to less than $2,000 only one newspaper is to be designated for the publi- cation. (§ 2524.) Section ii6.— Order: How Executed. If the order be in the alternative and directs service of the cita- tion by delivery of a copy thereof without the State or by publica- tion thereof, either mode will suffice; but the order must be followed strictly. (Luddon v. Degener, 14 App. Diu. 397, 43 Supp. 908 ; Boioler v. Ennis, 46 Ap2X Biv. 309, 61 Supip. 686 ; Finic v. Wallach, 47 Misc. 247, 95 Siqyp. 872.) If service by publication be adopted and the papers are addressed and mailed to the person to be served at a place other than the one stated in the order, the service is ineffectual. {Smith v. Wells, 69 JV. Y. 600.) The service by publication of a citation, like a similar service of a summons, is not complete until the expiration of six full weeks from the day of its first publication. (Market Nat. Bank v. Pacific Nat. Bank, %Q N. Y. 397; Matter of Koch's Will, 12 Supp>. 94, 19 Civ. Pro. Rep. 165.) i\loreover, there must be a pub- lication at least once in each seven days ; and if, because of a legal holiday on the day when tlie publication ordinarily would be made or for some other reason, the publication is made twice in one period of seven days, and not at all in the succeeding period of seven days,' the service is invalid although it is not necessary that each publication be made on tlie same day of the week. {Doheny v. Warden, 75 App Div. 47, 77 Supp. 959 ; see Wood v. Knapp, 10.0 N. Y. 109.) Where the order directs the service to be made either person- ally without the State or by publication, and thereupon the cita- tion is personally served more than thirty days before the return date thereof, it is sufficient : it is not necessary that six weeks intervene except where the service is made by publication. (Matter of Macaulay, M N. Y. 574.) The method of computing the time for the publication of a legal notice is prescribed in section 787 — made applicable to pro- ceedings in the Surrogate's Court by section 3347 subdivision 6: § 787. Time fob Pdblication of Notice ; How Computed. — The period <)£ 114 PART I : GENERAL PROCEDURE. Ca. 5, §§ 117, 118. Service of Petition: When Required. — "When Citation must be Served. publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of record, or before a Judge of such a court, must he computed, so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the lull period of publication. (1876 eft. 448.5 Section 117.— Service of Petition with Citation : When Required. A citation is a mandate issued by the surrogate, or out of the Surrogate's Court, upon a petition therefor duly presented or filed ; but there is no statute requiring a copy of the petition to be served with the citation. However, rule 3 of the Surrogate's Rules of New York county provides : No mandate issued out of this court shall be deemed duly served, unless copies of the petition or other paper or papers upon which it shall be issued, and upon which relief is sought, shall be served with it, except the following : 1. Citation to attend probate. 2. Citation to revoire probate. 3. Citation on application for administration. 4. Citation for intermediate account. 5. Citation to attend judicial settlement of account, ^j 6. Citation to temporary administrator to account. ' 7. Citation to principal in a bond to give new sureties in place of sureties who apply to be released. 8. Order to temporary administrator to make deposit. 9. Order to executor to appear and qualify. f'\ 10. Order requiring the executor or administrator to file inventory. i. / ;' ,. , -. 11. Why an account should not be made on Surrogate's motion. ( Rule 3.) \y t(^ '-^ Section ii8.— Time when Citation must be Served. Where a citation is served personally within the State upon'an adult or an infant of the age of fourteen years or upwards, as provided in section 2520, it must be so served, if within the county of the surrogate, or an adjoining county, af least eioM days before the return day thereof ; if in any other county, at least fifteen days before the return day ; unless in either case, the person served, being an adult, and not incompetent, assents in writing to a service within a shorter time. (See- sec. 100 ante.) § 2525. When and How Servicb Out of State is Made. Where service is made by delivering a copy of the citation without the State, pursuant to an / > order made as prescribed in the last- section, it mus't be made, if within the j ' United States, at least yjujj days, if without the United States at least forty ty t'l-' ' days, before the return day of the citation. *>«* ' Proof of publication, deposit, or delivery may be tnade as prescribed in sec- tion four hundred and forty-four of this act. (1882 eft. 399.) Although service by publication must be for « not less than one© in each of six successive weeks " (§ 2524), and is not accomplished until the expiration of forty-two days from the time of the first publication {see sec. 114 ante), it is not necessary that the pub- Jication be completed eight days, or any other particular time, Ch. 5, § 118. THE CITATION AND ITS SERVICE. 115 Time when Citation must be Served. before the return day. {]\Iatter of Denton, 86 A2Jp. Div. 359, 83 Supp. 778.) There seems to be no provision as to the time when service of a citation must be made, as provided by section 2526, upon an infant under the age of fourteen years, or upon a person judicially declared to be incompetent, or upon a corporation. Very likely the requirements of section 2520, in this particular, should apply also to the service of a citation under section 2526 ; but, by the terms of the section, they are limited. to service upon an adult person or an infant of the age of fourteen years and upwards. In Boerum v. Betts (1 Dem. 471) it was held that eight days must intervene between the return day of the citation and the day of its service,, so that a service on July 20th of a citation returnable on July 28th was considered to be insufficient. This decision is disapproved in Matter of Carhart (2 Dem. 627), where it was held that the return day may be counted in estimating the eighth day. However, the latter decision was based upon former section 788, providing for the computa- tion of time "by excluding the first, and including the last day " ; but this section has been repealed and the General Con- struction Law now provides that the day to be excluded in making the reckoning is the day of the specified event from which the days, weeks or months are to be counted. (1909 ch. 27 § 20.) It is held, however, that the rule previously laid down in section 788 has not been changed materially ; and it follows that, while the return day must be excluded in reckoning the eight days, the day on which the citation is served may be included. {People v. Burgess, 153 JST. Y. 561, 573 ; Biggs v. Citij of Geneva, 100 Ajyp./ Div. 25, 90 S^lpp. 858.) In Matter of Porter (1 Misc. 489, 22 Su2}p. 1063, 54 St. Rep. 302) it was held, by a surrogate of "Westchester county, that per- sonal service of a citation made within this State upon a non- resident is void ; but that service upon such a party must be made by publication, or by personal service without the State at least thirty days before the return day. {See also Merritfs Will, 5 Dem. 544.) This decision obviously is erroneous ; and it is not surprising that in Matter of Washhurn (12 JiLlsc. 242, 34 Supp. 44, 67 St. Rep. 895) it was held, by the succeeding surrogate of the same county, that jurisdiction of the Surrogate's Court is 116 PART I : GENERAL PROCEDURE. Ch. 5, §§ 119, 130. Service of Citation; By Wtiom Made— Proof of Service. established over any person, regardless of his residence, where personal service upon him is made in this State and within the time required by section 2520. Section 119.— Service of Citation : By Whom Made. It is provided in section 2520 that " any person, although a party to the special proceeding, may serve a citation." Under the former practice, also, service of a citation by a party was per- mitted. ( Wetmo)-e v. Parher, 52 N. Y. 450.) There seems to be no provision as to the age of a person who may serve the citation. By rule 18, of the General Rules of Prac- tice, service of a summons may not be made by anyone who is less than eighteen years of age ; and it is undoubtedly good prac- tice to apply this requirement to the service of a citation also. Section 120. — Proof of Service. § 2532. Peoof of Service of Citaiiox, Sueposna, etc. — Proof of service of a. citation, or a subpoana, issued from a Surrogate's Court, must be made in the manner prescribed by law, tor proof of service of a summons issued out of tlie Supreme Court. In every other case, proof of service must be made by affi- davit ; or, where the person served is of full age and not incompetent, by a written admission signed by him, accompanied with proof, by affidavit or other' wise, of the genuineness of his signature. (1880 ch. 178.) The following are the Code requirements as to proof of service of a summons : § 434. Peoof of Service of Sdmmons, etc; How Made. — Proof of service, fs prescribed in this articie, must be made by affidavit, except as follows : 1. If the service was made by the sheriff, it may be proved by his cei;tiflcate thereof. 2. If the defendant served is an adult, who has not been judicially declared to be incompetent to manage his affairs, the service may be proved by a written admission, signed by him, and either acknowledged by him, and certified in Uke manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine. A certificate, admission, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompany- ing the same, imports, unless otherwise expressly stated therein, or otherwise plainly to be inferred from its contents, that a copy of the paper was de- livered to the person signing the admission. (1876 ch. 448.) It is provided in section 425 that " the summons may be served by any person, other than a party to the action, except where it is otherwise specially prescribed by law," and in like manner, under section 434, the genuineness of a signature to an admission of service of a summons may not be proven by the afQdavit of a-^ plaintiff ; but, as any party to a special proceeding in the Surro- Ch. 5, § 121. THE CITATION AND ITS SERVICE. 117 Form: Proof of Service, gate's Court may serve a citation, there seems to be no reason why the genuineness of a signature to an admission of the service thereof may not be proved by the affidavit of any party to the proceeding inasmuch as no statute expressly prohibits it. The requirements of rule 18 of the General Rules of Practice also must be observed ; and so, Where personal service of the citation shall be made by any other person thatt the sheriff, it shall be, necessary for such person to state, in his affidavit ot service his age, or that he is more than 21 years of age ; when, at what particular place, and in what manner he served the same, and that ho isnew the person served to be the person mentioned and described in the citation as respondent therein, and also to state in his affidavit that he left with respondent such copy, as well as delivered it to him. Where service of the citation is by publication, or by deliver- ing a copy of it without the State, pursuant to an order made as prescribed in section 2524, it is provided in section 2525 that "proof of publication, deposit, or delivery may be made as pre- scribed in section 444 of this act." {See sec. Il8 ante.) § 444. Proof of Seetice. — Proof ot the publication of the summons and notice must be made by the affidavit of the printer or publisher, or bis foreman or principal clerk. Proof of deposit in the post-offlce, or of delivery, of a paper required to be deposited or delivered by the provisions of this articlel, must be made by the affidavit of the person, who deposited or delivered it. (1876 eft. 448.) In case of an infant or incompetent person, where the surrogate has made an order directing a delivery of the citation to a persort designated in the order in addition to service of it upon such infant or incompetfent, the service is not complete until this has been done ; and the proof of service must show a delivery of a copy of the citation as required by the order. Moreover, " the fact that the parties were duly cited is presump- tively proved, by a recital to that effect in the decree " (§ 2473) j but this may be rebutted by other evidence. {Hood v. Hood, 85- JSr. T. 561, 578.) Section 121. — Form : Proof of Service. County of ss. of in said county of , being duly sworn, says that he is more than 21 years of age, and that on , 19.., at In the of , N. Y., he personally served the annexed citation on whom deponent knew to be one of the persons named therein and to whom it is directed, by delivering to and leaving with him in person a true copy thereof. {Where party served, is an infant, under 14 years, add: and by alsa 118 • PART I : GENERAL PROCEDURE. . Ch. 5, § 121, Form : Proof of Service. delivering a copy thereof to and leaving the same with , who is the father, or mother, or guardian, or person, etc. — see § 426 — < of said , an infant under the age of 14 years, person-: ally at in said , N. Y. Or where party served is an adjudged incompetent, add: and by also delivering a copy thereof to, and leaving the same with , who is the duly appointed committee of the person and estate of said an ad^ judged incompetent person, personally at in said ) S.Jurat,) (Signature.) ("Where service is admitted.) I, , one of the persons named in the within (or annexed) citation and to whom it is directed, do hereby admit due and personal service thereof on me in the city of , N. Y., on this ..... day of 19... (Signature.) '(The signature must ie acknowledged and certified as in case of a deed to Be recorded; or it may be proven by affidavit, as follows:) County of ss. of the city of in said county of ,- Being duly sworn, says that he is of full age and personally knows , whose name is subscribed to the above admission of service upon him of the within citation, and (*) that deponent was present and saw said subscribe his said name thereto.- (Or proceed after (*) that he has frequently seen said write and is well acquainted with his handwriting and with his signa-- t*ire; and that, to the best of deponent's knowledge and belief, the flame aforesaid, purporting to be the signature of said was actually made by said , and is in his own proper handwriting. iJurat.) (Signature.) '{Where citation is published.) County, ss. of the city of , in said county, being duly" gworn, says that he is the printer (or publisher, or foreman, or princi- pal clerk of the printer or publisher) of the ., a newspaper published in said of and State of New York; that the annexed citation (of which a copy as published is hereto attached) has been published in said newspaper once in each of six successive weeks; and that the first publication thereof was made. on the day of 19. ., and- the last publication thereof on the .... day of ,19... (Jurat.) (Signature.) Ch. 5, § 132. THE CITATION AND ITS SERVICE. 11? Waiver of Citation, [Title of Proceeding.) County of ss. of the city of in said county, being duly sworn, says: that he is (a clerk in the office of ) the attorney for , who is the petitioner in the above en- titled special proceeding, and that on the .... day of 19. ., he deposited in the post-ofiSce in the of county of and State of New York, a copy of the annexed citation issued herein and of the order directing the publication thereof which was duly made by the surrogate of county on the .... day of , 19. ., (a copy of which order is hereto annexed) contained in a securely closed post-paid wrapper, directed to at in the State of (If is an infant^ under the age of 14 years, add: and that, at the same time, he did also deposit in said post-offlce a further copy of said citation and order, likewise contained in a securely closed post-paid wrapper, directed to , , the person with whom said is, sojourning at in the State of ..,..,, . iiJurat.) (Signature.). (Where service is without the State.)] '(Title of Proceeding.) State of I County of J ^^ of , in the county of and state of being duly sworn, says that be is over 21 years of age and that on the day of , 19. ., (Must be at least 30 days before' the return day of citation) he delivered a copy of the annexed citatioa to , one of the persons therein named and to whom it is directed, at in the city of and State of , in person, and left the same with him. (If is an infant' under the age of 14 years, add: and also to , the person with whom said , an infant under the age of 14 years, was at- the time sojourning, at ) (Jurat.) (Signature.) If the affidavit or acknowledgment, constituting the proof of service, he executed in a county, other than that of the surrogate' before whom the proceeding is pending, it must be certified in the manner required to entitle a deed to be recorded. Section 122. — Waiver of Citation. Prior to 1896 there was no statutory authorization for any waiver of either the issuance or service of a citation, and it had 130 PART I : GENERAL PROCEDURE. Ch. 5, § 133, Waiver of Citation. been held that service thereof could not be waived, but that, to confer jurisdiction upon a Surrogate's Court, there must be actual service of the citation and pi'oof thereof by affidavit or admission (Matter of Gregory, 13 Misc. 363, 35 Supjx 105, 69 St. Hep. 479), although it had been held also that such a waiver was really effected by a general appearance in the proceeding. {Matter of Post, 80 Misc. 551, 64 Supp. 369.) Afterwards section 2528 was amended (1896 ch. 570) by incor- porating in it the following : The issue and service of a citation may be waived by a party in any pro- ceeding by an instrument in writing, aclinowledged or approved as a deed en- titled to be recorded, or by personal appearance or by his attorney with written authorization executed and acknowledged as a deed and filed in the office of the surrogate. (See sec. 126 post.) This language seems broad enough to authorize a waiver by an infant ; but it cannot be that such is its intent or that any act of an infant can confer jurisdiction upon the court under this pro- vision. Moreover, by the preceding portion of the section, only . an adult is authorized to appear in person or by attorney so as thereby to effect a waiver ; and it is safe to assume that in case of an infant neither the issuance nor service of the citation can be dispensed with. As we have already seen (sec lOi ante) a special guardian for an infant cannot be appointed until after service of the citation upon the infant (Davis v. Crandall, 101 JV. Y. 811 ; Crouter v. Crouter, 133 iV: r: 56 ; Potter v. Ogden, 186 ]Sr. Y. 384) ; and so a special guardian for an infant cannot Avaive " the issue and service of a citation." Under section 2528 even an attorney may not waive " the issue and service of a citation " in behalf of his client unless " with written authorization executed and acknowledged as a deed and filed in the office of the surrogate." However, although an ex- pressed waiver of " the issue and service of a citation " may be made only by a personal appearance of the party, or by some acknowledged or approved writing of his, yet, where the citation has been issued, his voluntary appearance is equivalent to personal service thereof upon him (§§ 2528 & 424), and such a general appeajance in the proceeding not only will cure any deficient serv- ice of the citation (Matter of Porter, 1 Misc. 489, 22 Sicpp. 1068, 54 St. Rep. 302), but, also, all defects in the petition, affecting jurisdiction over the person appearing, thereby are waived. Ch. 5, § 123. THE CITATION AND ITS SERVICE. 131 Form : Waiver of Citation. (Peters v. Carr, 2 Dem. 22 ; a?2d see Washbon v. Cope, 144 iVI Y, 287.) In some cases the citation is in the nature of an order and re- quires obedience, but generally its ofB,ce is merely to give notice to interested parties who thereby are brought within the juris- diction of the court ; and a citation need not be issued where the petition shows that there are no persons interested in the matter- except the petitioners {Bailey v. Stewart, 2 Bedf. 212), or that the petitioner is entitled absolutely to the relief demanded. Indeed, in ease of an application for letters of administration, it is expressly provided in section 2663 : Where it is not necessary to cite any person, a decree, granting to the petitioner letters, may be made on presentation of the petition. (Sec. — (mte.) In Matter of Graham (39 Misc. 226, 79 Supp. 573, 12 A. C, 157) it was held by the surrogate of Westchester county, that a waiver of " the issue and service of a citation," executed 'prior ta the commencement of a proceeding in the Surrogate's Court, con- fers no jurisdiction over the party so executing it. But this ruling is questionable and does not accord with the general prac- tice. Under section 2698, expressly providing for a waiver by^ creditors " of the issuance and service of a citation " upon a peti— 'tion for ancillary letters, such a waiver may be filed with the- petition ; and, by the doctrine of estoppel, a person who has ex- ecuted a formal waiver of the issuance as well as of the service of a citation — even though prior to the filing of the petition — hardly will be permitted to assail the pi'oceedings by alleging that the citation had not been served upon him. Section 123.— Form : Waiver of Citation. (Title of proceeding.) I. one of the heirs and next of kin of .■ late of the of .., county of N. Y., deceased, (or otherwise state how interested in the proceeding) do hereby waive the issue and service of a citation in the special proceed- ing now pending (or, which may hereafter be commenced) in the Surrogate's Court of the county of , N. Y., for the probate of the last will and testament of , dated the day of ., 19.., and attested by and as sub- scribing witnesses. (Or otherwise state object of proceeding.) Dated at .the .... day of , 19. .. (Signature.y 133 PART I : GENERAL PROCEDURE. Ch. 5, § 124. Supplemental Citation: Form. The waiver must be acknowledged, and certified as a deed entitled to be recorded, and filed in the office of the surrogate; Section 124. — Supplemental Citation: Form. It is provided by subdivision 2 of section 2481 that a surrogate, in court or out of court, as the case requires, has power To adjourn, from time to time, a hearing or otlier proceeding in his court; and where all persons who are necessary parties have not heen cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supple- mental citation, or require the petitioner to give an additional notice, as may te necessary. (See sec. 72 ante.) Thus the surrogate has statutory authority to issue a supple* mental citation and thereby bring in, as a party to a special pro- ceeding after it has been instituted and even on or after the return day, any person who is necessary to an adjudication of its subject- matter and who may have been omitted from the original citation or not served therewith before the return day. (Matter of Phalen^ 61 Hun 208, 4 ^upp 408, 21 St. Rep. 34; Matter of Laytin, 15 J!fi!sc. 660, 37 iSw^jjo. 1125 ; see sees. 145-147 i?osi!.) Such a cita- tion need not be marked " supplemental ", for the fact that it was issued after the original citation makes it such. {Matter of Will of Bradley, 70 JTun 104, 23 Siqop. 1127, 53 St. Hep. 540.) The following is suggested as ^form for a supplemental cita' tion: THE PEOPLE OP THE STATE OF NEW YORK To and heirs and next of kin ot i : late of the city of county of and State of New York, deceased. Send Greeting. "Whekeas, in the Matter of the Probate of the Last Will and Testament of said .deceased, (,or otherwise state pro-' ceeding) a citation heretofore was duly issued out of our Surrogate's Court directed to you and also to other heirs and next of kin of said decedent, whereby you and they were cited to appear before our surro- gate. In the Surrogate's Court in and for the county of , on the .... day of , 19.., to attend the probate of the will of said decedent (or otherwise state proceeding); but said citation was not duly served upon either of you as prescribed by law and because thereof said special proceeding has been duly adjourned until the day of 19. ., to the end that you and each of you may be duly cited by this supplemental citation and thereby be made parties to said Special proceeding Now Therefore, you and each of you are hereby cited to appear Ch. 5, § 125. THE CITATION AND ITS SERVICE. 123 The Return of a Citation. before the surrogate, in our Surrogate's Court in and for the county of , at his office in the city of , N. Y., on the said .... day of , 19.., at ten o'cloclj in the forenoon of that day to attend the probate of the last will and testament of said which relates to both real and personal property and is pro- pounded for probate by , designated as executor thereof {or otherwise state purpose of citation) ; and you are required then and there to show cause why the same should not be admitted to probate as a will valid to pass both real and personal property, and be so recorded. And each of you, who may be under the age of twenty-one years, is required hereby to appear then and there by your general guardian, if you have one, or, if you have none, to appear and apply for the appoint- ment of a guardian; and, in case of your neglect or failure so to dO, you are notified hereby that a special guardian will, thereupon be .appointed by our surrogate to represent you in this proceeding. In TESTIMONY wHEEEOF, We havo caused the official seal of the ■Surrogate's Court of county to be hereunto affixed. Witness, Hon Surrogate of the County i(L. S.) of at the Surrogate's Office in the City of .-, this the . .^ day of , 19. .. Surrogate. (Or, Clerk of the Surrogate's Court.) Section 125. — The Return of a Citation. It is provided by subdivision 10 of section 2514 : The expression, " upon tbe return of a citation," wbere it is used In a pra- ■Tision requiring an act to be done in the Surrogate's Court, relates to the time and place at which tbe citation is returnable, or to which the hearing is ad- journed; includes a supplemental citation, issued to bring in a party who jought to be, but has not been cited ; and implies that, before doing the act ■specified, due proof must be made, that all persons required to be cited hare been duly cited. (See sec. 1 ante.) Under this provision, before the surrogate proceeds with the hearing, proof should be made that " all parties required to be cited have been duly cited." " The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree " (§ 2473) ; and so the proper recital carefully should be set forth in the decree because of its evidential value. Never- theless the citation itself, together with due proof of its season- able service upon all persons to whom it is directed, should be filed in the surrogate's office on or before its return day; and thereupon the surrogate should make some disposition of the matter so as to retain jurisdiction. If the parties or any of them 124 PART I : GENERAL PROCEDURE. Ch. 5, § 135. The Return of a Citation. appear, and the cause is not ready for a hearing, the proceeding may be adjourned; for the expression "upon tlie return of a citation " includes not only the day mentioned therein but also the time and place "to which the hearing is adjourned" (§ 2514 sub. 10) ; but if there be no appearance and the proceeding is not adjourned, or otherwise disposed of by order of the surrogate or by stipulation of the parties, it goes down and nothing further can be done in the matter without due notice. {Matter of Page., 107 N. Y. 266.) CHAPTER VI. PARTIES AND APPEARANCES. Section 126. Appearance of Party and Effect thereof. 127. Appearance by Attorney. 128. Special Appearance. 129. Form: Notice of Appearance by Attorney. 130. Appearance of Infant or Incompetent Person. 131. Special Guardian: When to be Appointed. 132. Same Subject: Who may be Appointed. 133. Same Subject: How Appointed. 134. Same Subject: General Observations. 135. Special Guardian for Infant Petitioner. 136. Special Rules of Surrogate's Court in New York County. 137. Form: Consent of Special Guardian. 138. Form: Order Appointing Special Guardian. 139. Duty of Special Guardian. 140. Termination of Special Guardianship. 141. Compensation of Special Guardian. 142. Intervention of Parties. 143. Form: Petition for Intervention. 144. Form: Order Allowing Intervention. 145. New Parties by Order or by Supplemental Citation-. 146. Form: Petition for Supplemental Citation. 147. Form: Order for Supplemental Citation. 148. Substitution of Parties. 149. Same Subject: Proceeding in Rem. 150. Form: Petition to Substitute Party Respondent. 151. Form: Order Substituting Party Respondent. 152. Necessary Parties: How Designated. 153. Heirs and Next of Kin. 154. Devisees and Legatees. 155. Husband or Wife. 156. Creditors. 157. Assignees of Legatees, Next of Kin, etc. 158. Executors and Administrators. Section 126. — Appearance of Party and Effect thereof. § 2528. Appeaeance, I-Iow Made ; and Effect Thekbof. — In a Surrogate's! Court, a party of full age may, unless he has heen judicially declared to he incompetent to manage his afifalrs, prosecute or defend a special proceeding, in person or by attorney regularly admitted to practice in the courts of record, at liis election, except in a proceeding to punish him for contempt, or where he Is required to appear in person, by special proTision of law, or by a special order at the surrogate. 125 126 PART I : GENERAL PROCEDURE. Ch. 6, § 127. Appearance by Attorney. The issue and service of a citation may be waived by a party in any pro- ceeding hy an instrument in writing, aclinowledged or approved as a deed entitled to be recorded, or by personal appearance or by his attorney with written authorization executed and acknowledged as a deed and filed in the office o£ the surrogate. The appearance of a party against whom a citation has been issued, has the same effect as the appearance of a defendant in an action brought in the Supreme Court. (1890 ch. 570.) The practice in tlie Surrogate's Court concerning the appear- ance of parties is substantially the same as in other courts of record (§§2528£fe55); and the voluntary general appearance of a person named or described in a citation is equivalent to personal service of it upon him. (§§ 2528 ■& 424.) Where the Surrogate's Court has jurisdiction of the subject- matter of a special proceeding, the general appearance therein of a party waives any defect in the petition relating to jurisdiction of his person (Peters v. Carr, 2 Dem. 22 ; Iloag v. Lamont, 16 Ahh. N. S, 91) or in the issuance of the citation. {Matter of Surliurt, 43 Hun 311, 4 St. Rep. 354.) Answering the petition on its merits is equivalent to a general appearance (Matter of Macaulay, 27 Hun 577 aff'd M JST. T. 574); and, in general, wherever the Surrogate's Court has jurisdiction of the subject- matter, a voluntary appearance of the necessary parties completes its jurisdiction in the special proceeding. Section 127.— Appearance by Attorney. Not only is the Surrogate's Court a court of record {Judi^ ciary Laio, § 2 sub. 7) but the right of a party to appear by attorney therein is recognized by the Code (§ 2528); and, as declared by Judge O'Briex, writing for the Court of Appeals in Matter of Megan (167 IST. Y. 338, 343) : An attorney, duly admitted to practice in all the courts of record in the State, is an attorney of the Surrogate's Court, and his functions as an officer of that court are quite as important to the community and to his clients as the services that he may perform in any other court. Where a party has appeared by attorney in a special proceed- ing in the Surrogate's Court, « a notice or other paper, required to be' served " therein " must be served upon his attorney " (§§ 2538 & 799) except a process, or a paper to bring the party into contempt, or where a different mode of service has been Ch. 6, § 127. PARTIES AND APPEARANCES. 127 Appearance by Attorney. especially prescribed by "law." (§§ 2538 & 802.) After such appearance, an objection that the party was not served with the citation or that the appearance by his attorney was unauthor- ized, and hence, that the decree was without jurisdiction, cannot be taken collaterally ; but to obtain relief the jjarty is confined to -a, motion in the origina,! special proceeding — the rule being the same in the Surrogate's Court as in other courts of record. ( Washbon v. Cope, 144 2^. Y. 287.) In New York county an attorney, who appears for a non-resident against whom a citation has been issued but not served, is required to file written proof of his authority else his appearance will be ignored. {Matter of Busenbury, 33 Misc. 166, 68 Su2yp. 372.) It would seem — as provided by section 55 relating to an action — that, if a party has appeared by attorney in a proceeding in the Surrogate's Court, he should not be permitted to act personally with reference to any matter therein as to which his attorney may act pursuant to either a special provision of law or the course and practice of the court ; for the effect of an appearance by an attorney in the Surrogate's Court is substantially the same as in other courts of record. As we have seen already (sec. 9 ante), the law partner or clerk of a surrogate may not " practice before him, as attorney or coun- sellor in any cause, or be employed in any cause which originated before him " ; and the clerk and all other persons employed in any capacity in a surrogate's office are forbidden to act as attorney or counsel or special guardian in any matter before the surrogate. Moreover " a surrogate's father or son shall not practice or be employed as attorney or counsel, in any case, in which his part- ner or clerk is prohibited by law from so practicing, or being employed." {See Code § 2509 sub. 6; Judiciary Laio, §§ 471 & 472.) It may be remarked in passing that, for services rendered in a special proceeding in the Surrogate's Court, an attorney has a- Men upon the decree rendered therein ; and, when the amount haff- been liquidated by a judgment at law, the surrogate has power to protect such a lien by vacating a satisfaction of the decree made in disregard of the attorney's rights. {Matter of Regan, 167 XT. Y. 338 ; see also sec. 61 ante.) 128 PART I : GENERAL PROCEDURE, Oh. 6, §§ 138, 129. Special Apiiearance. — Form Notice of Appearance by Attorney. Section 128. — Special Appearance. Where a person named as a party does not intend to submit to the jurisdiction of the court, he may appear specially to raise the question of jurisdiction ; but if he elects to come before the court and try other questions involved in the proceeding he cannot after-; wards claim that his appearance was merely a special one or deny that the court obtained jurisdiction over him. {Matter of Bing- ham, 127 N. Y. 296 ; Reed v. Chilson, 142 If. Y. 152.) "When appearing specially a party should be careful to confine his answer to the particular objection he seeks to make ; for if he goes far-, ther, and interposes objections to the petition on the merits, such an answer may make his appearance a general one. {Matter of Mac- aulay, 27 Hun 577, aff'd 94: JSF. Y. 574.) Section 129. — Form : Notice of Appearance by Attorney. (Title of Proceeding.) Take notice, that I liave been retained by and appear for » in the above entitled special proceeding (*) — or, for as general guardian of an infant named in the citation issued in^the above entitled proceeding (*) — or, for as committee of the person and estate of , an adjudged incompetent person, named in the citation issued in the above entitled special proceeding (*) and demand that all notices and other- papers herein be served upon me at my office at No. street in the city of N. Y. Dated at ...:„,...., N^Y., , 19... ^ Yours, etc., {Signature of attorney with office- and P. 0. address.) To Hon.Tr........ , Surrogate; and To ......^j^.. ....... Esq., Attorney for Petitioner.' If appearance he for a special purpose, continue from. (*) as follows: specially, for the purpose of moving to dismiss this proceeding on tho ground that the Surrogate's Court has no jurisdiction thereof. (Or state other special purpose.) Add date, signature of attorney and address as above. Ch. 6, §§ 130, 181. PARTIES AND APPEAriAXCES. 139 Appearance of Infant — Special Guardian: When to be Appointed. Section 130. — Appearance of Infant or Incompetent Person. In any special proceeding before tlie Surrogate's Court an infant may appear by liis general guardian and an adjudged lunatic, idiot, or habitual drunkard may appear by his committee ; but such general guardian or committee must Irave been duly ap- pointed by the proper court in the State of New York. {Morrell V. DicJcey, 1 Johns. Ch. 152; IIoLoshey v. Reicl, 4: Brad. 334; Weller v. Suggett, 3 Medf. 249 ; 3Iatter of Neally, 26 How. Pr. 402.) Such an appearance is not expressly authorized by the Code ; but tlae phraseology of sections 2527 and 2530 recognizes it as permissible. However, there is no authority for an ap- pearance by either a general guardian for an infant, or a com- mittee for an incompetent person, until after the citation duly has been served upon the infant or incompetent person in the manner prescribed by law ; and a prior appearance cannot operate as a substitute for,' or a waiver of a defect in, tlie service of the citation, {See Potter v. Ogden, 136 JST. T. 384, 392.) Moreover, even where an infant appears by his general guardian or where an incompetent person appears by his committee, it is a duty of the surrogate to " inquire into the facts " and " if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant, or incompetent person ; or that, for any other reason, the interests of the latter " so require, he must appoint a special guardian for such infant or incompetent to conduct the proceeding in his behalf. (§§ 2627 d> 2530.) "Where an infant has no general guardian he can appear only by a special guardian. Section 131. — Special Guardian : When to be Appointed. § 2530. Special Goahdian ; When to be Appointed. — Where a party, who is an infant, does not appear hy his general guardian ; or where a party, who is a lunatic, idiot, or habitual drunkard, docs not appear hy his committee, the surrogate must appoint a competent and responsible person, to appear as special guardian for that party. Where an infant appears hy his general guardian, or where a lunatic, idiot, or habitual drunkard, appears hy his committee, the surrogate must inquire into the facts, and must, in like manner, appoint a special guardian, if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant, or incompetent person ; or that, for any other reason, the interests of the latter require the appointment of a special guardian. A person cannot he appointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him. (1880 ch. ITS.) 130 PART I: GENERAL PROCEDURE. Ch. 6, § 133. Same Subject: Who may be Appointed. And in a proceeding to assess a tax under article 10 of the Tax Law, relating to Taxable transfers, it is provided : If, however, it appears at any stage oE tbe proceedings that any of such persons Imowu to be interested in the estate is an infant or an incompetent, the surrogate may. If the interest of such infant or incompetent is presently involyed and is adverse to that of any of the other persons interested therein, appoint a special guardian of such infant ; hut nothing in this provision shaU affect the right of an infant over fourteen years of age or of any one on behalf of an infant under fourteen years of age to nominate and apply for the appointment of a special guardian for such infant at any stage of the pro- ceedings. (1909 ch. 62 § 231.) The practice under this provision will be considered hereinafter in connection with the procedure to assess taxable transfers under the Tax Law. (See sec— post.) In section 2527 it is provided that the surrogate may make an order requiring a copy of the citation to be delivered, in behalf of an adjudged incompetent, to a person designated in the order and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the incompetent person, to the exclusion of the com- mittee, and with the same powers, and subject to the same liabilities, as a committee of the property. (See see. 100 ante.) This provision seems to add nothing to the authority conferred upon the surrogate by section 2530 ; and the distinction between a "special guardian" and a " special guardian «(? ?iYem " is not obvious. It is a re-enactment of the statute (1872 ch. 693) which first authorized the surrogate to appoint a special guardian in such a case. Jurisdiction over the person of an infant party to a special pro- ceeding in the Surrogate's court can be obtained only by service upon him of the citation ; and no appointment of a special guardian is valid until jurisdiction over the infant has been secured in the manner prescribed by law. {Davis v. Crandall, 101 JV. Y[ 311 ; Potter Y. Ogden, 136 IST. Y: 384; PincJcneijY. Smith, 26 Hun 524.) Thus where service upon an infant, under 14 years of age, was made by leaving a copy of the citation with his mother, but not also with the infant personally, it was held that the service was void and that an appointment of a special guardian was unavail- ing. {Sogle V. Hogle, 49 Hun 313, 2 Sicpp. 172, 17 St. Be}). 580.) Section 132. — Same Subject : Who may be Appointed. The statute does not prescribe any qualifications for the special Ch. 6, § 133. PARTIES AND APPEARANCES. 131 Same Subject: How Appointed, guardian except that he must be " a competent and responsible person," but it is good practice to insist upon the same qualifica- tions as those required of a guardian ad litem in the Supreme Court ; and the person selected should be an attorney who is fully competent to understand and protect the rights of the infant or incompetent and has no interest adverse to liiui, and is not con- nected in business with the adverse party or his attorney or counsel. He should be also of sufficient ability to answer to the infant or incompetent for any damage which may be sustained by his negligence or misconduct. {Story v. Dayton, 22 Hun 450 ; see also ride 49 of the General Hides of Practice ; Matter of Henry, 2 How.,Pr. N. S. 250.) Although the statute provides that a special guardian must be a " competent and responsible person," no method is indicated whereby these qualifications may be as- certained; and, undoubtedly, tliey may be shown in any manner satisfactory to the surrogate. " A person cannot be appointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him " (§2530) ; and, unlike the practice in the Supreme Court, it is also expressly provided that " the clerk or other person employed in any capacity in a surrogate's office, shall not act as special guardian, in any matter before the surrogate." (§ 2509 sub. 6 ; see sec. 56 ante) It has been held that a surrogate is not disqualified to act in ft proceeding pending before him, because his brother is special guardian for an infant party thereto. {Matter of Yan Wagonen, 69 Hun 365, 23 Supp. 636, 52 St. Rep. 699 ; see also Matter of Hopper, 5 Paige 489 ; Underhill v. Dennis, 9 Paige 202.) Section 133.=— Same Subject : How Appointed. § 2531. NoTicfi OF Peoceedings to Appoint Speci.il Guakdiax. — Where a person, Otbei? tban the infant, or the committee of the incompetent person, applies for the appointment of a special guardian, as prescribed in the last section, at least eight days' notice of the application must be personally served tipotl the infant, or incompetent person, it he is within the State, and also upon the committee, if any, in like manner as a citation is required by law to be' served. But except in a case specified in title fifth of this chapter, the surrogate may, by an order to show cause, prescribe a shorter time, and direct the service of tie order to be made in such a manner as he deems proper. The application may be made at the time of presenting the petition, and, in that case, the order tit show cause may, in the surro'gate's discretion, accompany the citation. (1880 ch. 178.) Where the application is by the infant himself it should be 133 PART I : GENERAL PROCEDURE. Ch. 6, § 134. Same Subject: General Observations. made on the return day of the citation, but not earlier (^Matter of LeinJcauf, 4 Dein. 1) ; and no notice thereof is required. {Matter of Ludlow, 5 Redf. 391.) However, it is held that if an infant has a general" guardian, and nevertheless applies for the appointment of a special guardian to represent him in the Surrogate's Court, he must give the general guardian due notice of his application. {Farmers' Loan & Trust Co. v. McKenna, 3 Dem. 219.) Where the persons entitled to notice of an application for the appoint- ment of a special guardian are in court or immediately accessible an order to show cause may be made returnable forthwith ; and it has been held that there need be no notice of an application in behalf of an infant who is present in the Surrogate's Court at the time of the appointment and makes no objection. {Matter of Seabra, 38 Hun 218.) Where an infant does not appear by his general guardian, or ail incompetent person by his committee, it is the duty of the surro- gate to appoint a special guardian for such infant or incompetentj and the surrogate may do this without any application therefor; and when the appointment is made in this manner no notice need be given. {Matter of Ludlow, 5 Hedf 391 ; Price v. Fenn, 3 I>em. 841, 8 Civ. Pro. Rep. 206 ; Bryant v. Thomx^son, 59 Iltcn 545, 14 Supp. 28, 37 St. Rep. 431.) The statutory requirement of an eight days' notice does not prevent a surrogate on his own motion from appointing a special guardian for an infant, in a proceeding pend* ing in his court, where the general guardian of such infant has been removed during the progress of the cause. {Matter of Monell, 19 Siipp. 361, 46 St. Rep. 693.) Section 134. — Same Subject : General Observations. The application for a special guardian usually is made by the petitioner ; and it may be made when the petition is filed so that the order to show cause will accompany the citation. (§ 2531.) However it is a customary practice to put in the citation itself a clause notifying the infants, to whom it may be directed, that, upon the return day, in case they do not appear by general guardian, or do fail to appear and ask for a guardian, a special guardian will be appointed for them by the surrogate. {Price V. Fenn, 3 Bern. 341, s. c. as Estate of Fenn, 8 Civ. Pro. Rep. 206.) Where an infant has a general guardian, the appointment of a Ch. 6, § 134. PARTIES AND APPEARANCE. 133 /s Same Subject: General Obccrvations. special guardian for him is neither necessary nor proper unless the general guardian fails to appear or cannot properly represent his ward ; but a guardian appointed under the laws of another State cannot, by reason of such appointment, api)ear for the in- fant in a proceeding taken in this State {Morrell r. Dichey^ 1 Johns. Ch. 152 ; McLosJcexj v. MeicI, 4 JBrad. 834), and, likewise, the committee of a person, who has been adjudged a lunatic by a court of another State, has no standing in our courts as such com- mittee. {Matter of N'ealhj, 26 How. Pr. 402 ; Weller y. Suggett, 3 Bedf. 249.) The parent of an infant, although a guardian in socage or by nature, cannot therefore appear for the infant ; but first he must be appointed regularly either as general or special guardian. {Matter of Bowne, 6 Bern. 51, 19 St. Rep. 895.) Even after a special guardian is appointed all subsequent pro- ceedings are deemed to be taken by the infant himself although actually taken by the special guardian {Bryant v. Thompson., 59 Bmu 545, 14 Supp. 28, 37 St. Rep. 431) who is only an ofQcer of the court and not a party to the proceeding ; for the infant retains his interest in the controversy, regardless of the appoint- ment of a special guardian. {Matter of Van Wagonen, 69 JSicn 865, 23 Supp. 686, 52 St. Rep. 699.) Where a person has been appointed special guardian, and it subsequently appears that he is ineligible, he may be removed by the surrogate and a proper person be substituted. {Hatter of Luce, 17 Wtdy. Big. 35.) And if, during the progress of a special proceeding, the general guardian of. an infant party is removed and a special guardian appointed, the subsequent appointment of another general guardian does not revoke the appointment of the special guardian. {Matter of Monell, 19 Sup^. 861, 46 St. Rep. 693.) The surrogate acquires jurisdiction over the person of an infant by service of a citation upon him ; and the omission to appoint a special guardian as required by the statute, although an error, wUI make the proceeding voidable-only, but not void {Matter of Becker, 28 JImi 207), and a decree rendered therein cannot for that reason be assailed collaterally. {Jenkins v. Youngs, 43 Sim 194, 5 St. Rep. 476; see McMurray v. McMurray, 66 JST. Y. 175.) Moreov^ir it has been held that if there be a defective service of 134 PART I : GENEllAL PKOCEDURE. Ch. 6, § 135. Special Guardian for Infant Petitioner. citation upon an infant his appearance pursuant to it will authorize the Surrogate's Court to appoint a special guardian for him {Brick's Estate, 15 Abb. Pi\ 12) ; and under subdivision 7 of section 721 made applicable by section 2538, where a report or decision has been rendered infcwor of an infant party, the decree entered thereon is not impaired or affected because of his " appear- ance by attorney.'''' {See sec. 1757W6V,) However, in a proceeding to dispose of a decedent's real property for the payment of his debts, where no special guardian was appointed for an infant heir until after the decree, it was held that a subsequent order appoint- ing a guardian, although made on notice to the infant, did not cure the defect. {Matter of Mahoney, 34 Hun 501.) "Where a party has not been judicially so declared but actually is incompetent by reason of idiocy, lunacy or habitual drunken- ness, it is the surrogate's duty to appoint a special guardian for him under the provisions of section 2530 ; for it is the policy of the law that persons not competent to protect their own interests in legal proceedings shall have their day in court through com- petent representatives. {Matter of D onion, QQ Hun 199, 21 Siipp. 114, 49 St. Rep. 150.) However, it has been held that a person who was once in an asylum, and at times is flighty, but Avho had not been judicially declared to be incompetent to manage his affairs, could appear personally in the Surrogate's Court ; and that the neglect or refusal of the surrogate to appoint a special guardian for him did not invalidate the proceedings. {Matter of Stephens' Estate, 2 Supp). 36.) Where, after a special proceeding actually has been commenced, an infant becomes interested in the subject-matter thereof by reason of the death of one of the parties, and that fact is brought to the attention of the surrogate, it be- comes his duty to bring in such infant as a party by a supple- mental citation. {Mussell v. Hartt, 87 N. Yi 19.) Section 135. — Special Guardian for Infant Petitioner. The only authority conferred by the Code upon the Surrogate's Court to appoint a special guardian is contained in sections 2527 and 2530 which apply exclusively to cases where the infant or incompetent person already is a party to the proceeding as a respondent or defendant. There is no reason, however, why an infant may not institute a special proceeding in like manner as an adult ; but, thereafter, and at least upon the return day of the Ch. 6, § 136. PARTIES AND APPEARANCES. 133 Special Rules of Surrogate's Court in New York County. citation issued therein, a special guardian sliould be appointed for him as though he were a respondent. {Matter of Watson, 2 Bern. 642; see Pdma v. Bessie Iron Works, 120 JV. Y. 433.) Where a special proceeding is to be instituted by an infant having a general guardian the petition may be made by the latter and is properly executed when signed in the name of the infant by his general guardian. {Matter of Ilurlburt, 48 Hun 311, 4 St. Rep. 354.) In such a case a special guardian need not be appointed unless it shall appear that the interests of the general guardian are adverse, or that, for any other reason, he is not a fit person to protect the infant's rights. {See sec. 131 ante) Where a proceeding is pending to probate a will in which an infant is interested, and a special guardian for him has been appointed and has filed objections, a temporary administrator may be appointed as provided by section l^l^—fonnerly section 2669 — upon the petition of the special guardian. {Matter of Chase, 32 Hun 318.) In the case cited the application was made "on the proceedings heretofore had and upon the foregoing petition " ; and it was held that this authoriz.ed the moving party to read his petition and the proceedings already had in the Sur- rogate's Court, and also that the application, being that of the infant, was by " a person interested in the estate " of which the surrogate had jurisdiction. The special guardian signed and yerified the petition in his own name, individually. Aside from statutory provisions the Surrogate's Court possesses inherent authority, arising out of the necessities of the situation, to appoint a guardian ad litem to protect the interests of any infant party to a proceeding; and the fact that no statute expressly requires the exercise 01 this authority, in a particular case, will not justify an omission to make such an appointment. {KeUett v. Bathbun, 4 Baiffe 102 ; Matter of Watson, 2 Dem. 642; Mtate of lilden, 6 Civ. Pro. Eep. 15.) Section i36.~Special Rules of Surrogate's Court in New York County. The rights and interests of infant parties cannot be protected too carefully. The special rules adopted by the Surrogate's Court of New York county, to safeguard such interests, have been prepared so wisely that they are given here in full. Many of the 136 PAKT I : GENERAL PROCEDURE. Ch. 6, § 137, Fonn : Consent of Special Guardian. precautions thereby made imperative should be observed in every case. Those rules are as follows : RcLE 10. No special guardian to represent the interests o{ an infant in any proceeding in said Surrogate's Court will be appointed on tlie nomination of a proponent or tlie accounting party, or his attorney, or upon the application of a person having an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the appli- cation of an infant or otherwise in a proceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person, or such general guardian, is competent to protect the rights of the infant, and that he has no interest 'adverse to that of the infant, and Is not connected in business with the attorney or counsel of or any party to the proceeding. Where the application for the appointment of a special guardian is- made by another than the infant, or where the general guardian appears in behalf of the infant, it must appear that such applicant or general guardian has no Interest adverse to that of the infant. No party to a proceeding will be appointed special guardian of any other party thereto. If such- applicant or general guardian is entitled to share in the distribution of the estate or fund in which the infant is interested, the nature of the interest of such applicant or general guardian must be disclosed. The applicaJ:ion for the appointment of a special guardian, as well as the appearance filed by a general guardian of a minor, must, in every instance, dis- close the name and residence and relationship to the infant of the person with whom the infant is residing, whether or not he has a parent living, and if a parent is living, whether or not such parent has knowledge of and approves such application or appearance ; and such linowledge and approval must be shown by the aflidavit of such parent. If the infant has no parent living, lilie knowledge and approval of such application or appearance by the person with whom the infant resides must be shown in like manner. Where such application is made by an infant over the age of 14 years, his petition must show and be accompanied by the affidavit of the parent (in case the latter has an interest adverse to that of the infant), showing, in addition' to such knowledge aforesaid, that such parent has not influenced the infant In the choice of the guardian. Edlb 11. In any proceeding for a judicial settlement of the account, wherein a special guardian shall be appointed or a general guardian shall appear to protect the interests of an infant party to such accounting, no decree will be entered as upon default against such infant, but such decree shall be so entered only on the written report of the guardian appearing for such infant that he has carefully examined the account and finds it correct, and upon two days' notice to the guardian of the settlement thereof. Rule 12. Whenever an infant interested in any proceeding in said Surro- gate's Court has a general guardian no decree will be entered without appoint- ing a special guardian to represent said infant's interest therein, unless such general guardian shall file his appearance in writing and his affidavit of no adverse Interest, as required by Rule 10, with the Clerk of said Surrogate's Court. Section 137. — Form : Consent of Special Guardian. (Title of Proceeding.) I_ , of the city of , N. Y., do hereby consent to be appointed the special guardian of an infant (or a lunatic, or an idiot, or an habitual drunkard, or an adjudged incompetent person) in the above entitled special proceeding; and I hereby state th&t I have no interest therein, or in the subject-matter Ch. 6, §§138, 139. PARTIES AND APPEARANCES. 137 Form: Order Appointing Special Guardian. — Duty of Special Guardian. thereof, adverse to that of said infant. (Or lunatic, or Idiot, or habitual drunkard, or adjudged incompetent person.) Dated at , N. Y., the day of , 19. .. HSignature.)] Consent should be acknowledged, though not required by statute. Section 138. — Form : Order Appointing Special Guardian. (Title of Proceeding.) It appearing to my satisfaction (by the petition herein — or by the affidavit of '. verified the day of , 19..) that , one of the persons named in the citation herein and to whom it is directed, is an infant (or a lunatic, or an idiot, or an habitual drunkard, or an adjudged incompetent person) and that he has not appeared herein by his general guardian (or by his committee) and, upon reading and filing the duly executed written consent of , counsellor at law, to be the special guardian of said herein, and upon the application of (due notice of said application liaving been served personally upon said and also upon the general guardian of said , or upon the committee of said ) I DO HEREBY OEDEB that be, and he hereby isj appointed special guardian of said to appear for him; &nd protect his rights and interests, in this special proceeding. Dated at , N. Y., the .... day of , 19. .. Surrogatfe: Section 139.— Duty of Special Guardian, It is the duty of a special guardian to examine the circum- stances of the case, and, to the best of his ability, make himself acqtlaiiited with the rights of liis ward and take all steps neces- sary for the protection of such rights. He should act independ- ently of other persons interested in the estate and ought not to be deterred by any influence from making close inquiries into all matters affecting his" ward ; for it is his duty to inquire and examine, and he should not substitute even the solemn assurances of respectable executors or administrators or of their counsel for careful personal innesti(jation. The court is jealous of the fights of infants and incompetent persons, and will keep watch over them and thfeir property ; and the special guardian is the arm of 138 PART I : GENERAL PROCEDURE. Ch. 6, §§ 140, 141, Termination of Special Guardianship. — Compensation of Special Guardian. the court by means of -which such rights are protected. (Matter of Wadsioorth's Mtate, 6 Supp. 932, 24 St. Rep. 416.) Section 140. — Termination of Special Guardianship. Formerly it was held that the functions of a special guard- ian ceased upon entry of a final order or decree in the special pro- ceeding -wherein he -was appointed and that he was neither re- quired nor empowered to represent his ward upon an appeal {Estate of Hewitt, 1 Bern. 249, 4 Civ. Pro. Rep. 57 ; Estate of Bull, 6 iSicpp. 565, 22 St. Rep. 880) ; but this doctrine no longer prevails. A special guardian does not become functus officio upon the entry of a decree ; for, under section 2573, he is a necessary party to an appeal therefrom, and he also may take and prosecute an appeal. His duties continue until the end of the special proceeding includ- ing each appeal therein ; and the Appellate Division will not appoint another special guardian or a guardian ad litem to prose- cute or defend any such appeal. (Matter of Stewart, 23 App. Div. 17, 48 Supp. 999.) Section 141. — Compensation of Special Guardian. The Surrogate's Court has no power to award a special guard' ian, even when appointed on its own motion to represent an in- fant or incompetent person, any compensation for his services payable out of the general fund or estate, in excess of the costs authorized by sections 2557-2561 (Matter of RoMnson, 160 N. Y. 448 c6 692 ; Matter of Ruppaner, 7 Ap>p. Div. 11, 39 Supp. 763; Matter of OfKeeffe, 80 App. Div. 513, 81 Supp. 118) ; for he is Sippointed to look after and protect the interests of his ward, only^ and— excepting such taxable costs as may be allowed by the sur^ rogate-^his compensation must come from his ward oi" his ward's estate. (Matter of Will of Budlong, 100 N. j: 203 ; see Matter of Holden, 126 N. Y. 589.) The amount that may be allowed — in addition to disbursements under section 2559 — by way of costs, payable out of the general estate or fund, is limited by section 2561, as follows : To twenty- jive dollars where there has not been a contest; to seventy dollars where there has been a contest ; and, where a trial or hearing upon the merits before the surrogate occupies more than two days, to tert dollars for each additional day ; to seventy dollars where a Ch. 6, § 141. PARTIES AND APPEARANCES. 139 Compensation of Special Guardian. motion for a new trial is made before thte surrogate, if it be granted, and to forty dollars if it be denied. And costs may be awarded to a special guardian for an infr.nt, payable out of tlie estate, even wliere be has unsuccessfully contested an application for the probate, or the revocation of the probate, of a will. (§2558.) Where an application is made by a special guardian for com- pensation payable by the ward, or out of his estate, the surrogate should enforce rule 50 of tlie General Rules of Practice which applies to a " special guardian " and a " special guardian ad litem " appointed in the Surrogate's Court. {Matter of Smith, 111 App_ Biv. 23, 29; s. c. as Matter of Bender's Will, 97 Supp. 171 ; Mc Cue V. O'Sara, 5 Eedf. 336.) This rule provides : But no order allowing compensation to guardians ad litem shall be made, except upon an aflBdavit to tie made by such guardian, if an attorney ot the court, or 11 the guardian be not an attorney, then an atBdavit to be made by an attorney of the court who has acted in the matter in behalf of such guardian, showing that he has examined into the circumstances of the case, and has, to the best of his ability, made himself acquainted with the rights of his ward, and that such guardian has takfen all the steps necessary for the protection of such rights, to the best of his knowledge, and as he believes, stating what has been done by him for the purpose of ascertaining the rights of the ward. (Rule SO.) The amount of compensation payable out of the estate of tTie infant or incompetent person depends upon the character and value of the services rendered and all other circumstances of the par- ticular case including the value of the estate or fund involved. The old rule that the surrogate has no power to compensate a special guardian for services in a proceeding after it had left his court — as, for instance, on an appeal from his decree — was based upon an erroneous idea that the guardian's functions ceased when a final otder or decree had been rendered in the Surrogate's Court ; but, since the reason for this rule no longer exists {Matter of Stewart, 23 App. Div. 17, 48 Supp. 999), the rule itself no longer prevails. Although a surrogate has discretion to make a suitable allow- ance to a special guardian, payable out of the ward's share of an estate, the Appellate Division has power to review the allowance and, in case of an abuse of discretion to the detriment of the infant, to disallow it. The Supreme Court has this authority by virtue of its inherent power to protect the property of an infant ; and it will exercise it even on the appeal of an executor or other trustee who is required to pay over a portion of the trust moneys in satisfaction of the allowance. It is not necessary that either 140 PART I : GENERAL PROCEDURE. Ca. 6, § 142. Intervention of Parties. the infant or his guardian take the appeal. {Matter of Stevens, 114 App. Div. 607, 99 Supp. 1070, aff'd 188 JSF. Y. 589.) Section 142. — Intervention of Parties. As a rule any person who has, or, who in good faith claims to have, an interest in the subject-matter of any special proceeding pending before a Surrogate's Court, but who has not been named in the citation, may appear upon the hearing and make himself a party {Matter of St. John, 104 App. Dw. 460, 93 Supp. 836) ; and if he so appears he will be bound by the decree. {Bogardus v. Clarl; 4 Paige 623 ; VanderpoelY. VanYalkenburgh,Q N". Y. 190, 199.) In several cases this privilege is expressly recognized and confirmed by the Code, as, for instance, in each of the following proceedings : To probate a will (§ 2617) ; for the probate of heir- ship (§ 2655) ; for letters of administration (§ 2663) ; for the judicial settlement of the account of an executor or administrator on his petition (§ 2728) ; for the disposition of a decedent's real property for the payment of debts. (§ 2755.) Moreover in some cases a person who was not a party to the special proceeding while in the Surrogate's Court, thereafter may intervene and appeal from the decree. (§ 2569 ; see sec 352 post) In each of these cases the statute permits intervention as a matter of right ; but the interest of the would-be inter venor may be questioned and his right challenged. It seems, therefore, tha better practice — as it was the rule before the Code — to require an application therefor to be made by a verified petition disclosing the interest or relationship of the applicant, and, ujDon such peti- tion, if granted, to enter an order allowing the petitioner to be- come a party to the proceeding. {See Foster <& Tyler v. Fostei'i 7 Paige 48, 52.) Where the right of a person to intervene is questioned his status m'ay be determined before any trial of the main issues {Matter of Hamilton, 76 Sun 200, 27 Sicpp. 813, 57 St. Rep. 810 ; Matter of Peaslee, 73 Hun 113, 25 Supp. 940, 56 St. Rep. 134; Matter of Thompson, 41 Misc. 223, 83 Supp. 983, aff'd'&l App: 6l,iv. 609 ; Henrrj v. Henrij, 4 Jifem. 253, 3 How. Pr. X. S. 386) ; and, in rule 4 of the Surrogate's Rules in New York county, it is provided, with reference to probate proceedings, that in case the right of any objecting party to appear and contest shall be questioned, tie Ch. 6, § 142. PARTIES AND APPEARANCES. 141 Intervention of Parties. court will first hear and pass upon " * * the status of the contestant, unless, tor the con venience of the parties or the court, it shall be ordered otherwise. However, such a preliminary question may be determined toith the main issue — the court trying all the issues together {Norton V. Lawrence^ 1 Redf. 473) ; and vrhere the status of the would-be intervenor depends upon a determination of the main issue this course should be adopted. Matter of St. John, 104 Ap}:!. Div. 460, 93 Supp. 836.) But the matter is largely in the discretion of the surrogate although, perhaps, in some cases, it is affected by the following clause in subdivision 11 of section 2514 : Where a provision of this chapter prescribes that a person interested may object to an appointment, or may apply for an inventory, an account, or increased security, an alle- gation of his interest, duly verified, suffices, although his interest is disputed ; unless he has been excluded by a judgment, a decree, or other final determination, and no appea therefrom is pending. (See seci i ante^ Nevertheless the surrogate may investigate and make a pre- liminary determination even as to the status of a person applying for an inventory where his interest is disputed. (Matter of Wagner, 119 iV: j: 28 ; Matter of Comins, 9 App. Div. 492, 41 Supp. 323.) It has been held that the administrator of a deceased resident of this State, appointed in a foreign State to represent the estate of such decedent as one of the heirs and next of kin of a deceased resident of that State, is a proper party to a subsequent piroceed-' ing here for the probate of an alleged will of the deceased resi- dent of this State and is entitled to intervene therein and oppose such probate. Matter of Davis, 182 JV. T. 468.) Ihtei'vention also has been allowed as follows : To a legatee under a prior will, although he was neither an heir nor next of kin ( Turhune v. Brook- field, 1 Bedf 220) ; to the executors of a prior will, even when the parties beneficially concerned had released their interests {Matter. of Greeley, 15 Abb. Dr. JST. S. 393) ; to a public adminis- trator, when the decedent left no known next of kin ; and to the Attorney-General, when he left no known heir . ( Gombault v. Public Administrator, 4 Brad. 226) ; and to a judgment creditor of a devisee under a will when there was an alleged codicil which took away the devise. {Matter of Coryell, 4 App. Div. 429, 39 Supp. 508.) In Matter of Brou-n (47 Hun 360, 14 St. Rep. 622), however, it was held that the receiver of the property of a judg- ment debtor should not be permitted to contest the probate of a will of the debtor's wife, even though, if probate should be denied 143 PART I : GENERAL PROCEDURE. Ch. 6, §§ 143, 144. Form: Petition for Intervention. — Form: Order Allowing Intervention. the debtor would come into property sufficient to pay his debts; but, the difference between compelling a debtor to acquire property enough to satisfy his creditors and disabling the creditor to pro- tect the lien, which he already has acquired upon his debtor's property, is apparent. As a general rule anyone whose interests may be harmed by a special proceeding in the Surrogate's Court will be permitted to intervene (see Matter of Soyt, 55 Misc. 159, 106 Supp. 359) ; for it is a settled policy of our courts to permit every person, having or in good faith claiming to have, an interest in the subject-matter of a judicial proceeding, to appear in that proceeding for the pur- pose of having his claims passed upon in the regular way. {Matter of Su John, lOi App. Div. 460, 93 Supp. 886.) Section 143. — Form : Petition for Intervention. (Title of Proceeding.) To THE surrogate's COURT of County: The petition of of the of , N. T., re3i)ectfully shows: That your petitioner is a creditor of formerly of said of ; , who recently died intestate {or otherwise state relationship) ; that this special proceeding has been instituted upon the petition of and now is pending in this court, for a decree awarding letters of administration to said or to some other proper person {or otherwise state nature of proceeding) ; that your petitioner has a large claim against the estate of said decedent and is interested in the due and proper administration thereof ( or otherwise state interest of peti- tioner), but that he is neither an heir nor of the next of kin of said decedent and is not a party to this special proceeding and has no standing herein except by leave of the court. Wherefore your petitioner prays that he may intervene and appear- in this special proceeding so that he may care for his own interests and to that end move in the matter as he shall be advised. {Date.) (Signature.) (Add verification.) Section 144. — Form : Order Allowing Intervention. At a Surrogate's Court, in and for the county of held at the oiBce of the surrogate in the city of , N. Y., the...:.... day of ,19... Present, Hon Surrogate. Ch. 6, § 145. PARTIES AND APPEARANCES. 143 New Parties by Order or by Supplemental Citation. XTitle of Proceeding.) On reading and filing tlie petition of , verified on the day of , 19. ., whereby it appears that said petitioner is a creditor of deceased, (or otherwise state relation- ship) and that this proceeding is pending in our Surrogate's Court for a decree awarding letters of administration upon the estate of said decedent, (,or otherwise state nature of procse-Jing) and that said peti- tioner has a large claim against the estate and is interested In the due and proper administration thereof, {or otherwise state interest of petitioner) but that he is not a party to this proceeding. Now Therefore, on motion of , Esq., attorney for said petitioner, It is heeebt obdebed that said may intervene and appear in this special proceeding, and move in the matter as he ^hall be advised, in like manner as though he had been named in the citation herein. Dated at ^., N. Y., , 1&. ., Surrogate. Section 145. — New Parties by Order or \>y Supplemental Citation. Not only has the surrogate authority to allow the intervention 'of parties upon their own application but also, by subdivision 2 of section 2481, it is made his duty, where all persons Who are faecessary parties to a proceeding before him have not beeii cited or appeared or waived service of the citation, " to issue a siipple- mental citation, or require the petitioner to give an additional notice, as may be necessary." (See sec 124 ante.) Special provision also is made in several cases for bringing in new parties, as, for instance, in a probate proceeding where the Will is opposed : And in case the will propounded for probate is opposed, due and timely iiotice of the hearing of the objections to the will shall be given, in such manner as the surrogate, shall direct, to all persons in being, who would take any interest in any property under the provisions of the will, and to the fexeeutor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, and any decree in the proceeding shall not SflEeet the right or interest of any such person unless he shall be so notified. (§ 2617; see sec. — post.) The obvious purpose of this provision is to bring before the (iourt all persons whose interests may be adversely affected if the will be not probated, even though they neither have been cited fit)r have availed themselves of the right to intervene. 144 PART I : GENERAL PROCEDURE. Ch. 6, § 146. Form : Petition for Supplemental Citation. So also in a proceeding for a judicial settlement of the accounts of an executor or administrator : If any person, who is a necessary party for that purpose, has not heen cited or has not appeared, a supplemental citation must be issued, as prescribed in section 2727 of this act. (§ 2743; see sec. — post.) And in a proceeding for the disposition of a decedent's real property for the payment of his debts : If, upon the inquiry, it appears to the surrogate, that any heir or devisSBi or person claiming an interest in the property under an heir or devisee, is not named in the petition, the citation must also he directed to him. (§ 27S4 ; see sec. — post.) Inasmuch as the surrogate is required to bring into court all persons who are necessary parties to any proceeding before him, and who have not been cited or notified, it is immaterial how the non-joinder is brought to his attention ; but it is his duty, upon ascertaining the fact and of his own motion, to issue the citation or make the requisite order to bring in the necessary parties. {Russell v. Hartt, S7 N'. Y. 19, 23 ; and see Saltus Estate, 1 Tucker, 230; Matter of Odell, 1 Misc. 390, 23 8upp^ 143.) Section 146. — Form : Petition for Supplemental Citation. (Title of Proceeding.) To the Surrogate of County: The petition of of the city of ,■ N. Y.j respectfully shows: That the above entitled special proceeding is now pending in the Surrogate's Court of county and was instituted by your petitioner {state nature of proceeding, as, for instance,) for the probate of the will of late of said city of deceased; that said decedent left neither parent nor descendant him surviving, and that his only heirs and next of kin are two brothers who are parties to this special proceeding, and one , who is the only son of a predeceased sister, and is not a party to this proceed-' ing; that said is of full age and resides at N. Y., and was neither mentioned in the petition, upon which this special proceeding was instituted, nor named in the citation issued thereon, because your petitioner had at the time no knowledge or information concerning him or his existence. {Or otherwise state facts as to omitted person.) "Wheeefoke your petitioner prays that a supplemental citation may issue herein directed to said , and that this special proceeding may be adjourned until the return day thereof. .(Date.) {Signature.)] {Add verification.) Ch. 6, §g 147, 148. PARTIES AND APPEARANCES. 145 FoTin: Order for Supplemental Citation. — Substitution of Parties. Section i47.^Form : Order for Supplemental Citation. (Title of Proceeding.) It appearing to my satisfaction (by the petition of verified on the .... day of , 19. . ; but no petition or affldavit is required) that the above entitled special proceeding has been instituted (state nature of proceeding, as, for instance,) for the probate of the will of , late of said city of deceased, and that is one of the heirs and next of kin of said decedent (or other- wise state interest or relation) and that he is a necessary party to said proceeding, but has not been made such a party. Now, Therefore, (on motion of , Esq., attorney for said petitioner) I DO HEREBY oEDBR that a Supplemental citation issue herein directed to said and made returnable on the .... day of , 19.., to which date this special proceeding is hereby ad- journed; and that due and seasonable service of said supplemental citation be made according to law. Dated at N. Y., this .... day of , 19. .. Surrogate* Section 148.— Substitution of Parties. At common law when the sole party to a legal action died before trial the action abated. {HenjamMs Executors v. Smithy 17 Wend. 208 ; Matter of Palmer, lib JST. Y. 493) ; but upon the death of a sole party to a chancery suit it could be revived or con- tinued by petition to the court, or by a bill of revivor. {Evans y-. Cleveland, I'l IST. Y. 486, 489.) As originally enacted, the Code provisions upon the subject, contained in sections 755 and 757, re- lated only to actions ; but subsequently they were amended (18S1 ch. 284) so as to apply also to special proceedings — exce2)t in a ^uv- rogate'sCoury (§3347':'!M5s.4ce 6; Matter of Camp, 81 Hun 387j 30 Supp. 884, 68 St. Rep. 160) ; and section 766 provides, among other things, that a special proceeding in stituted by a " trustee appointed by virtue of a statute " does not abate by his death or removal and may be continued by his successor ; but this sec- tion also has no application to a proceeding in the Surrogate's Court. (§ 8347 sUh. 6 ; flatter of Schlesinger, 36 App. Div. 77j 55 Supp. 514.) Indeed there seems to be no general statutory provision author-- izing the revivor or continuance of a special proceeding in the Surrogate's Court except the following concerning appeals : 146 PART I : GENERAL PROCEDURE. Ch. 6, § 14S. Same Subject: Proceedings in Rem. § 785. Appeals, Taking or, in Case of Death of Pabty Entitled to Appeal. — Where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies eitber before or after this chapter takes effect, and before the expiration ot the time within which the appeal may be taken, or the motion made, tbe court may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal repre- sentative of the decedent, at any time within four months after his death. (1877 ch. 416 ; see 3347 sub. 6.) Moreover the right of appeal under such circumstances also is given by section 2569 which confers it upon one "who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been pre- viously acquired." (See sec. 352 post.) But there is now a special provision authorizing the revivor and continuance of an accounting — added by amendments (1901 cA. 409 ; 1902 ch. 349) to section 2606— where the executor, admin- istrator, guardian or testamentary trustee dies prior to a judicial settlement of his account. Before these amendments such a proceeding could not have been revived or continued against the representatives of an accounting party. (Matter of Schles- inger, 36 App. Div. 11, 55 Supp. 514; Matter of Steencken, 51 App. Biv. 417, 64 Supp. 660 ; Matter of Tredwell, 11 App. JDiv. 155, 79 Supp. 83.) There is also a special provision authorizing the continuance of a proceeding, for the disposition of a decedent's real property for the payment of debts, upon " the death, removal or disqualifi- cation, before the complete execution of a decree, of all the executors or administrators." (§ 2760 ; see sec. — post.) However, as a general rule, if the special proceeding be in per- sonam the death of a sole party will cause it to abate unless there be some statutory provision for its revivor or continuance. This right of revivor is a valuable one ; and, where it exists, the' surrogate has no power of his own motion, to make an order adjudging that the proceeding has abated. (Matter of Armstrong, 72 App. Div. 286, 76 Supp. 37.) Section 149.— Same Subject : Proceeding in Rem. Where, however, the proceeding is in rem the rule seems to be otherwise, and, upon the death of a sole party, no abatement occurs but the proceeding may be revived and continued by or against his successor. Thus a special proceeding for the probate' of a will does not abate by the death of a contestant ; and the Ch. 6, § 150. PARTIES AND APPEARANCES. 147 Form ; Petition to Substitute Party Respondent. court may substitute his representatives and continue the pro- ceeding. ( Va?i Alen v. Hewins, 5 Hun 44 ; see also Brick v. Brick, m N.Y. 144 ; Russell v. Rartt, 87 N. Y. 19.) In Matter of Govers (5 Dem. 40) the proponent of a will was a beneficiary. During the probate proceeding he died leaving a will which was afterwards proved ; and it was held that the orderly method of continuing the original probate proceeding would be an ex parte application by the executor of the latter will to be made a party, and then a motion on notice for a revivor in his name as proponent. Of course if the proponent of the original will had no beneficial interest in it there would have been no reason why his executor should move in the matter. Section 765 applies to a special proceeding in the Surrogate's Court (§ 3347 sub. 6) : § 765. No Veedict, etc., can be Takex after a Party's Death. — This title floes not authorize the entry of a judgment against a party, who dies hefore a verdict, report, or decision is actually rendered a.gainst him. In that case, the verdict, report, or decision is absolutely void. (1876 ch. 448.) Under this section it is held that in a contested proceeding for the judicial settlement of an account, where the accounting party dies after the case has been submitted to the surrogate but before his decision has been filed, no decree thereon can be entered. (JTerbert v. Stevenson, 3 Dem. 236.) Section 150. — Form : Petition to Substitute Party Respoii- dent. (Title of Proceeding.) To THE sueeogate's coubx of county : The petition of of the city of N. Y-i i'^spectfully shows: That your petitioner is one of the next of kin of i late of said city of , N. Y., deceased, who died intestate (.of otherwise state fact as to petitioner) ; and that the above entitled special proceeding has been instituted for a judicial settlement of thS account of , as sole administrator of the goods, chattels and credits which were of said , deceased. (Or other- wise state purpose of proceeding.) That your petitioner duly interposed certain objections to the said d'ccount filed herein; and that the trial of the issues raised thereby was in progress, and still pending undetermined, before this court on the .... day of , 19.., when said accounting administrator' died, leaving a last will and testament whereby he named one A. B; 148 PART I : GENERAL PROCEDURE. Ch. 6, § 151. Form : Order Substituing Party Respondent. to be the executor thereof; and that subsequently said will was duly admitted to probate by the surrogate of county and he there- upon duly issued letters testamentary thereon to said A. B., who re- sides in said city of N. Y., and that he thereupon qualified and entered upon his duties as such executor, and is now acting as such; and that this proceeding is still undetermined and cannot be continued without the substitution of said A. B., as such executor, in the place and stead of said deceased accounting administrator, as a party to it. (Or othervTisi state facts showing reason for substitution of suc- cessors to deceased party.) Wherefore your petitioner prays that the court revive this special proceeding against said A. B. as executor of the last will and testament of said (accounting administrator), deceased, and continue said special proceeding to a finc;l decree herein, and, to that end, that an order be made substituting said A. B. as such executor, in the place and stead of said , deceased, as a party to this special proceeding, and that he be cited, by a supplemental citation to be issued out of this court, to show cause, at a time and place therein named why (said accounting should not continue and) the prayer of the petition, upon which this special proceeding was insti- tuted, should not be granted and said proceeding continued to a decree herein; and that this special proceeding be adjourned until the return day of said citation. (Date.) (Signature.) (Add verification.) Section 151.— Form: Order Substituting Party Respondent. At a Surrogate's Court, in and for the county of , held at the office of the surrogate in the city of ; N. Y., the day of 19. . . Present, Hon , Surrogate '^Title of Proceeding.) On reading and filing the petition of , verified the day of 19 . . , whereby it appears, among other things, that the above entitled special proceeding now is pending in this Surrogate's Court and was instituted by said petitioner for a judicial settlement of the account of , as sole administrator of the goods, chattels and credits which were of , de- ceased, (or otherwise state purpose of proceeding); that during the trial of issues raised by objections to said account the accounting ad- ministrator died, leaving a last will and testament whereby he named one A. B. as the executor thereof; and that subsequently said will was admitted to probate by the surrogate of county who has issued Ch. 6, § 152. PARTIES AND APPEARANCES. 149 Necessary Parties : How Designated. letters testamentary thereon to said A. B., and tliat he has qualified and entered upon his duties as such executor and now is acting as such; and it further appearing by said petition that this proceeding is still undetermined and cannot be continued without the substitution of said A. B. as such executor in the place of said deceased accounting ad- ministrator as a party hereto. (Or otherwise recite facts showing reason ■for substitution of successors to deceased party.) Now, Therefore, on motion of , Esq., attorney for said petitioner, It is heeeby ordered that this special proceeding be, and the same hereby is, revived against said A. B. as executor of the last will and testament of said (accounting administrator'), deceased, who hereby is made a party in the place and stead of said , deceased ; and It is rurvTHER oedeeed that a supplemental citation issue herein directed to said A. B., as such executor, and made returnable on the .... day of , 19. ., before this court, requiring him to show cause why (said accounting should not continue and) the prayer of the petition, upon which this special proceeding was instituted, should not be granted and this proceeding continued to a decree; and It is fuethee oedebed that due and seasonable service of said sup- plemental citation be made according to law and that this special pro- ceeding be, and the same hereby is, adjourned until the return day thereof. Surrogate. Section 152.— ^Necessary Parties : How Designated. Each statutory provision authorizing a special proceeding in the Surrogate's Court also describes, or at least indicates, the persons or classes of persons who should be made parties ; and this subject will be considered hereinafter in connection with the discussion of particular special proceedings. HoATOver a few general observations at present may be useful. It is provided in section 2518 : Where it is prescribeiJ, in any provision of tliis chapter, that a petition must pray that a person, or that creditors, next of Isin, legatees, heirs, devisees, or other persons constituting a class may he cited for any purpose, all those persons are necessary parties to the special proceeding. (See sec. 98 ante.) As each special proceeding in the Surrogate's Court in some manner concerns a decedent's estate, it follows that every neces- sary party to it must be one who is or may be in some way intsr- ested therein or in its administration ; and the words " person in^ terested " are defined in subdivision 11 of section 2514 : 150 PART I : GENERAL PROCEDURE. Ch. 6, § 153. Heirs and Next of Kin. The expression, " person interested," wliere it is used in connection with an estate or a fund, includes every person entitled, either absolutely or con- tingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or othel'^ wise, except as a creditor. (See sec. 1 ante.) It may be said safely that no one is a necessary party — or, indeed, a proper party— to any such special proceeding who is neither a creditor of the decedent, nor a " person interested " in the estate or fund to which the proceeding relates, excepting a surety on the bond of an administrator or other trustee : he is always a proper party to an accounting by his principal. The parties to a special proceeding are the petitioner and thfe persons against whom it is instituted — usually called the respon- dents. But in a probate proceeduig, the petitioner is called the proponent while a party appearing in opposition to the will is termed a contestant ; and in a^ proceeding for the settlement of an account, the opposing party generally is referred to as the olyector or exceptant. Section 153. — Heirs and Next of Kin. The words " heirs " and " next of kin " are defined and con- trasted by Judge Eael, writing for the Court of Appeals, in Till- man V. Bams, (95 N'. Y.ll, 24) as follows : The primary meaning in the law of the word " heirs " is the persons related to one by blood, who would take his real estate if he died intestate, and the word embraces no one not thus related. It is not strictly proper to designate persons who succeed to the personal estate of an intestate. The proper prima;ry signification of tlie words " next of kin " is those related by blood, «o^o tahe personal estate of one who dies intestate, and they bear the same relation to personal estate as the word " heirs " does to real estate. The words " heirs " and " next of kin" would not ordinarily be used by any testator to designate per- sons who were not related to him by blood. The word " heirs " has a popular as well as a technical mean- ing, and, under special circumstances it may be held to include « next of kin " ; but the latter phrase has only a technical mean- ing, and, when standing alone, never is held to include " heirs." fJV: Y. Life Ins. & Trust Co. v. Iloyt, 161 JST. Y. 1, 9.) In this State, and as the word is used in the Code, " heirs " are Ch. 6, § 154. PARTIES AND APPEARANCES. 151 Devisees and Legatees. those to whom the real property of a person, who dies without devising it, descends under the so-called Statute of Descents con- tained in article 3 of the Decedent Estate Law. (1909 ch. 18 §§ 80-95.) It is provided in subdivision 12 of section 2514 : The term, " next of kio," includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the un- bequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. (See sec. 1 ante; also §§ 1870 <« 1905.) The " law relating to the distribution of personal property " . — usually called the Statute of Distributions — is section 98 of article 3 of the Decedent Estate Law (1909 ch. 18), providing for the distribution of unbequeathed personal property. The following Code provision concerns the issue of a marriage that has been annulled : § 1749. Issue ; When Entitled to Succeed^ etc. — A child of a marriage, which is annulled on the ground of the idiocy or lunacy of one of its parents, is deemed, for all purp'oses, the legitimate child of the parent who is of sound mind. A child of a marriage, which is annulled on the ground that one or both of the parties had not attained the age of legal consent, is deemed, for all purposes, the legitimate child of both parents. (1903 cli. 225.) Where a minor has been adopted legally pursuant to article 7 of the Domestic Relations Law, while " his rights of inheritance and succession from his natural parents remain unaffected by such adoption ", thereafter " the foster-parenb or parents and the minor sustain toward each other the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other." (1909 ch. 19 § 114.) The heirs of a decedent are necessary parties to a special pro- ceeding for the probate of his will, if it relates to real property (§ 2615) ; and to a proceeding for the disposition of his real prop- erty for the payment of debts (§ 2752) ; and also to a proceeding for the probate of heirship (§ 2654) : but otherwise— unless next of kin, also— tbey seldom are necessary or even proper parties to a proceeding in the Surrogate's Court; for it has but an inciden- tal jurisdiction over matters relating to real property. Section 154.— Devisees and Legatees. The devisee is a person to whom real property is given by will } 152 PART I : GENERAL PROCEDURE. Ch. 6, § 155. Husband or Wife. and a legatee is one to whom personalty is bequeathed. Either may institute a proceeding to prove the will wherein he is named (§ 2614), but neither one is a necessary party to such a proceed- ing instituted by another urdess probate he opposed, when " due and timely notice of the hearing of the objections " must be given to him (§ 2617) ; and each must be made a party to a proceeding for the revocation of its probate. (§ 2649.) Moreover, in a probate proceeding any person wha is named as a devisee or legatee in the will propounded, or in any other paper purporting to be at will of the decedent, may appear, and, at his election, support of oppose the application (§ 2617) ; and in a proceeding for the dis- position of decedent's real property for the payment of his debts, each devisee is a necessary party. (§ 2752.) Otherwise the devisee is seldom a proper party to any pro- ceeding in the Surrogate's Court; but the legatee always is a proper party — and usually a necessary one — to each proceeding Whereby his legacy may be affected ; and he may institute a pro- ceeding " for the payment or satisfaction thereof " (§ 2722), or for an accounting by the executor. (§ 2727.) Section 155.— Husband or Wife. Not only does the Code definition of " next of kin " exclude " a surviving husband or wife " (see § 2514 sub. 12) but it was settled long ago that neither of theia is an " heir " or of the " next of kin" of the other. {Dickens m. N. Y. Central B. B. Co., 23 JST. r: 158 ; Murdoch v. Ward, &1 N. Y. 387 ; Zuce v. Dunham, 69 iV: r: 36 ; Keteltas v. Iteteltas, 1'2 JST. Y. 312 ; Tillman v. DaviSj 2b JSr. Y.ll; Matter of Bevoe, 171 JSF. Zi 281 ; V. S. Trust Co. v. Miller, 57 Misc. 500, 109 A'upp. 938.) Each one, however, is a " person interested " where this expression is used in connection with an estate or a fund. (§ 2514 sub. 11.) Jn case of a divorce : If the action was brought bi/ the loife, the husband ceases to have any interest in her property, and her in- choate right of dower in his real estate is not affected by the judgment (§ 1759) ; but if the action was brotight by the husband, the wife no longer is entitled to dower in his real estate or to any share in his personal property, and the « judgment dissolving thS marriage does not impair, or otherwise- affect,- the" husband's " rights and interests, in and to any real or personal property, Ch. 6, § 156. PARTIES AND APPEARANCES. 153 Creditors. which the " wife " owns or possesses, when the judgment is ren- dered." (§ 1760.) However, this last provision of section 1760 seems to be inconsequential ; for the husband has no interest what- soever in any real or personal property of his wife except, pos- sibly, a tenancy by the curtesy initiate which she may terminate at any time by will or deed. The Court of Appeals has held that a divorced wife, whether the divorce was granted for the mis- conduct of herself or of her husband, has no interest in her former husband's personalty, and is not entitled to administration thereof {Matter of Estate of Ensign, 103 N. Y. 284) ; and this de- cision seems to sustain the counter proposition that a divorced husband, whether the divorce was granted for his own or his wife's misconduct, has no interest in her personal property and is not entitled to administer it. Section 156. — Creditors. The word " creditor " is thus defined by subdivision 3 of sec- tion 2514 : The word " debts " includes every claim and demand, upon which a Judg- ment for a sum of money, or directing the payment of money, could be re- covered in an action ; and the word " creditor " includes every person having such a claim or demand, any person having a claim for expense of administra- tion, or any person having a claim for funeral expenses. (See see. 1 ante.) A " creditor," therefore, is not included in the expression « per- son interested " when used in connection with an estate or a fund (§ 2514 sub. 11) ; and his claim or demand must be against the decedent or his estate. {Matter of Underhill, 117 iVi Y. 471 ; Matter of Redfield, 71 Hun 344, 25 Supp. 3, 55 St. Rep. 19 ; Mat- ter of Elsie A Heelas, 5 Redf. 440.) Thus a person who alleges that he is a stockholder in a corporation out of which the dece- dent as officer and director improperly made large profits, for which he has sued in its behalf because the corporation would jiot sue, is not a creditor of the estate nor interested in it. {Mat- ter of Himtington, 39 Misc. 4:11, 80 Supp. 220.) Creditors of a decedent are propet parties to an accounting by the executor or administrator, under section 2728 ; and it is held to be the better practice to cite them even though they have been paid in full. {Matter of DeForest, 86 Hun 300, 33 Supp. 216, 66 St. Rep. 844.) There are certain proceedings which a creditor of the decedent may institute, as, for instance, a proceeding for the 154 PART I : GENERAL PROCEDURE. Ch. 6, § 157. Assignees of Legatees, Next of Kin, etc, probate of his debtor's will (§ 2614), or to secure payment of his demand when it has been established or allowed (§ 2722), or to compel the return of an inventory (§ 2716), or to obtain an ac- counting by the executor or administrator. (§ 2727.) However, the Surrogate's Court has no Jurisdiction to try or determine the validity of a claim against the estate, unless, as au- thorized by section 1822, the respective parties have iiled a written consent " with the surrogate that said claim may be heard and determined by him upon the judicial settlement of the accounts of said executor or administrator as provided by section 2743 " (Matter of Edmonds, 47 Aj^p. Div. 229, 62 Sitpp. 652 ; Matter of Clark V. Hyland, 88 App. Div. 392, 84 Supp. 640) ; but after such consent has been filed by a creditor he cannot maintain an action on the claim. (Clark y. Scovill, 191 JV. Y. 8.) However the Sur- rogate's Court may determine whether a claim has been rejected or allowed. (Matter of Miles, 170 JV. Y. 75.) And where an ex- ecutor or administrator is also a creditor he may prove his claim upon the judicial settlement of his account. (§ 2731.) These limited powers of the Surrogate's court, in determining claims against a decedent's estate, are not enlarged by the provision of section 2743 that where the validity of a debt or claim "is admitted or has been established upon the accounting or other proceeding in, the /Surrogate's Court or other court of competent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same." (Green v. J)ag, 1 Dem. 45 ; s. o. as Martinets Estate, 11 AhhH N. C- 60 ; Matter of Brown, 3 Civ. Pro. Bep. 39; Matter of Lattan, 42 Misc. 467, 87 Supp. 246.) Section 157. — Assignees of Legatees, Next of Kin, etc. Prior to the enactment of section 2743, the statute did not mention " assigns " in providing for the distribution of a deced- ent's estate, and it was held that the surrogate could neither in- quire into the validity of an assignment of a legacy or distributive share nor direct payment thereof to the assignee (Matter of Bed- field, 71 Sun 344, 25 Supp. 3, 55 St. Bep. 19 ; Hitchcock v. Mar- shall, 2 Bedf. 174; Zeviness v. Casseheer, 3 Bedf. 491); but section 2743 recognizes the " assigns " of " creditors, legatees, next of kin, husband or wife of the decedent," as proper distrib- Ch. 6, § 157. PARTIES AND APPEARANCES. 165 Assignees, of Legatees, Next of Kin, etc. utees of an estate. Moreover, " the expression, ' person inter- ested,' where it is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as * * * assignee." (§ 2514 sub. 11 ; see sec. I ante.) It is provided in subdivision 3 of section 41 of the Personal Property Law (1909 ch. 45) tliat " where a claim or demand can be transferred, the transfer thereof passes an interest, which the transferee may enforce by an action or special proceed- i7ig * * * in his own name, as the transferrer might have done." Nevertheless it has been held that the Surrogate's Court has no authority, under section 2722 {former sections 2717 and 2718), to direct payment of a legacy to one claiming it by assignment. {Pey.'ier v. Wendt, 2 Dem. 221.) This ruling, however, was made on the ground that section 2722 only permits a petition by a person entitled under the will, and that an assignee is not so en- titled ; but the learned surrogate has misread the punctuation. The section authorises a petition " by a person entitled to a legacy, or any other pecuniary provision under the will, or a distributive share " ; and the assignee of a legatee is surely a person " entitled to a legacy." The words " under the will " only qualify « or any other pecuniary provision"; and they neither relate to "a legacy " under a will nor to " a distributive share " where there is no will. But the construction of section 2722 made in Peyser V. Wendt (2 Dem. 221) has been adopted in subsequent cases. {See Matter of Tilden, 3 Bern. 240 ; Matter of Brewster, 1 Con. 172, 19 St. Rep. 698: Matter of V/ood, 38 Misc. 64, 76 Supp. 967.) By a recent statute {former 1904 ch. 692), re-enacted in section 32 of the Personal Property Law (1909 ch. 45) and section 274 of the Real Property Law (1909 ch. 52) "every conveyance, assign- ment, or other transfer of, and every mortgage or other charge upon the interest, or any part thereof, or any person in the estate of a decedent which is situated within this State," is required to be in writing and « acknowledged or proved in the manner required to entitle conveyances, of real property to be recorded." Provis- ion also is made for the record of such an instrument in the sur- rogate's office, if it relates to personal property, and in the county clerk's office, if it relates to real estate. Unless so recorded it may become void as against a " subsequent purchaser or mort- gagee of the same interest or any part thereof, in good faith and 156 PART I : GENERAL PROCEDURE. Ch. 6, § 158. Executors and Administratoi's. for a valuable consideration, whose conveyance or mortgage is first duly recorded." Although an assignee of a legacy, distributive share, or claim against the decedent stands in the shoes of the assignor. when be- fore the Surrogate's Court, yet, if the validity of his assignment be questioned by the assignor, the surrogate has no power to de- termine the controversy between them: he cannot adjudicate against a legal title apparently valid. {Matter of Randall, 152 ]Sr. r; 508; Matter of Redfield, 71 Hun 344, 25 Supp. 3, 55 St. Rep. 19.) Section 158. — Executors and Administrators. If a creditor or a "person interested " in the personal estate of the decedent dies, the title to his demand, legacy or distributive share vests in his executor or administrator who thereupon be- comes a " person interested " in the estate and a necessary or proper party to any special proceeding to which his testator or intestate was, or would have been had he survived, a necessary or proper party (e. g. see § 2728) ; and where the creditor or " person inter- ested " has died during the pendency of a proceeding, to which he was a party, his executor or administrator should be substituted if the proceeding survives. {See sees. 148 c6 149 ante.) Where there are two or more executors or administrators, representing the same decedent, all are considevedi as one person {see § 1817) when acting in their representative capacity. Thus, where there are two administrators, both must be parties to a proceeding for the examination of a third person as to property belonging to the! estate which is alleged to be in his possession {Matter of Sling er- land, 86 Jlun 575) ; and where one of two or more executors or administrators institutes a proceeding, for the settlement of his account, his co-executors or co-administrators must be cited. (§ 2728.) If, however, one of several executors has not received letters testamentary he is not a necessary party to any proceeding in favor of or against the executors in their representative capa- city. (§ 1818.) None of these observations apply to an executor or administrator appointed in another State, .inasmuch as foreign executors or administrators cannot sue as such in this State ; for it is deemed to be against public policy for our courts to aid foreign executors or administrators in removing assets from the State to the possible Ch. 6, § 158. PARTIES AND APPEARANCES. 157 Executors and Administrators. prejudice of domestic creditors. {Petersen v. Chemical Bank, 32 N. r: 21 ; T.G. T. Co. v. C. B. & Q. B. B. Co. 123 JV. Y. 37.) But where there are no creditors of the decedent within the State there is no reason in tire rule. {Parsons \. Lyman, 20 iVi Y; 103 ; Taylor v. Syme, 162 N. Y. 513 ; Flandrow v. Hammond, 13 Afp. Biv. 325, 43 Sup2y. 143.) And recently it has been held by the Court of Appeals that the foreign administrator of a deceased resident of this State is a proper party to a proceeding for the probate of an alleged will of the decedent and is entitled to in- ter-^ene and oppose its probate {Matter of Dams, 182 N. Y. 468) ; but this decision was placed upon the ground that section 2617 expressly authorizes the appearance of such an administrator as one " who is otherwise interested in sustaining or defeating the will." However, the rule still is applied in the Surrogate's Court ; and a foreign executor or administrator as such is not a proper party to any proceeding therein involving the administration or disbri- butioii of the estate {Matter of Jones, 3 Redf. 257) ; but he must take out either principal or ancillary letters in this State. CHAPTER VII. OF THE PLEADINGS. Section 159. Pleadings in Surrogate's Court. 160. Written Pleadings: When Required. 161. Verification of Pleading. 162. Affidavit of Verification. 163. Verification: How and by Whom Made. 164. When Pleading must be Verified. 165. Allegations and Denials in Verified Pleading. 166. Form: Verification by Party or Attorney. 167. Service of Pleadings. 168. The Petition. 169. The Answer. 170. Objections to an Executon 171. Objections to an Account. Section 159.— Pleadings in Surrogate's Court. The practice Avhereby an issue is made for trial in the Sur- rogate's Court differs from that prevailing in other courts of record and is simpler. Theoretically, at least, in each special pro- ceeding the court or the surrogate, being moved by 2>etitioii, issues an appropriate citation (§ 2516), and, on its return day, the party cited may declare the facts upon which he relies ; whereupon a trial is had of the issues thus made. The pleadings, therefore, in thei Surrogate's Court consist of a petition and the ansioer thereto containing such objections or matters of defense as are to be interposed ; but there is no demurrer as a pleading. The petition and answer are addressed to the court itself, which, without any formal demurrer, may pass upon the sufficiency or relevancy of any matters set forth therein. Although not prescribed by statute, it is a general rule of pleading in this court that the parties shall present their claims in such manner as readily to apprise the court, and all others concerned, of the questions involved and the issues" to be tried {Foster v. WiJher, 1 Paig e 537 ; Van Vleck v. Bur- roughs, 6 J3arb. 3-11), but greater latitude is permitted than iif^ other courts of record, and any pleading may be made oralhj unless otherwise required by some provision of law, or by order of the surrogate, (§ 2533.) 158- Ch. 7, §§160-162. OF THE PLEADINGS. 159 Written Pleadings: When Required. — Affidavit of Verification. " The word ' affidavit ', includes a verified ; * * * petition or answer in a special proceeding." (§ 3343 sub. 11.) Section i6o. — Written Pleadings : When Required. § 2533. Written Pleadings may be Requieed. — The surrogate may, at anj time, require a party to file a written petition or answer, containing a plain and concise statement o£ the facts constituting his claim, objection, or defense, and a demand of the decree, order, or other relief, to which he supposes himself to he entitled. The surrogate may require the petition or answer to be verified, and & copy thereof to be served upon any other person interested. A party who fails to comply with such a requirement may be treated as a party in de- fault. Except where such a requirement is made, or in a case where a written petition is expressly required by this act, a petition, or the answer thereto, may be presented orally ; in which case, the substance thereof must be entered in the records of the courts. (1880 ch. 178.) As matter of fact, except in a few cases, " a written petition, duly verified " is required by those Code provisions whicn regulate the various proceedings in a Surrogate's Court; and, in actual practice, an oral pleading rarely is permitted. Rule 14 of the Surrogate's Rules of New York county pro- vides: All petitions and answers in this court, except as otherwise expressly pre- scribed by statute, shall be in writing and contain a plain and concise state- ment of the facts constituting the claim, objection or defense, and a demand of the decree, order or other relief to which the party supposes himself to be en- titled, which petition and answer are required to be verified. If a similar rule were made and enforced by every othei^ Surrogate's Court, the results would be beneficial. Section i6i. — Verification of Pleading. Where a pleading must be verified because required by the surrogate or by the Code the same rules apply which govern the verification of pleadings in an action. 9 § 2534. Veeification Thereof. — The provisions of sections 523, 524, 525, and 526 of this act apply to a verification made pursuant to this chapter, and to the petition or other paper so verified, where they can be so applied Jri substance, without regard to the form of the proceeding. (1880 ch. 178.) Section i62.-^Affidavit of Verification. Section 526, made applicable by section 2534, is as follow^ : § 526. FoKM OP Affidavit of Veeification. — The aflidavit of verification must be to the effect, that the pleading is true to the Ijnowledge of the de- ponent, except as to the matters therein stated to be alleged on informa- tion and belief, and that as to those matters lie believes it to be trua 160 PART I ; GENERAL PROCEDURE. Cn. 7, § 163, Verification : How and by Whom Made. Where it is made by a person, otber than the party, he must set forth, ii» the affidavit, the grounds of his belief, as to all matters not stated upon hia knowledge, and the reason why it is not made hy the party. (1876 ch. 448.) A substantial compliance with tliese requirements should be enforced (Morris v. Fowler, 99 App. Div. 245, 90 Supp. 918) ; but a verification of a pleading is sufficient where the affiant declares that he " knows the contents thereof, and that the same are true " ; for this is equivalent to saying that they are " true to the knowledge of deponent ", and so constitutes a substantial compliance with the statute. {Matter of Mac-. milay, 94 N. Y. 574.) Where a domestic corporation is the party pleading, the affidavit of verification may be made by an officer of it without setting forth therein the grounds of his be- lief as to matters not stated upon knowledge. {American In- sulator Co. V. Banker's Co., 13 Daly 200; Henry v. Brooklyn Heights E. R. Co., 43 Misc. 589, 89 Supp. 525, aff'd 97 App. Div. 631; see Am. Audit Co. v. Industrial Federation, 84 App.. Div. 304, 82 Supp. 642.) Section 163. — Verification : How and by Whom Made. Section 525 has been made applicable by section 2534 : § 525. Verification ; How and by Whom Made. — The verification must he made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted-, with the facts, except as follows : 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the State are, or a public officer, in their behalf. Is the party, the verification may be made by any person acquainted with the 3. Where the party is a foreign corporation ; or where the party is not within the county where the attorney residi's, or if the latter is not a resident of the State, the county where he has his office, and capable of making the affidavit ; or, it there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit ; or where the action or de- fence is founded upon a written instrument for the payment of money only which is in the possession of the agent or the attorney ; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney ; in either case, the verification may he made by the agent of or the attorney for the party. (1S79 ch. 542.) It is a substantial compliance with the statute where the petitioner's attorney of record, who signs the petition, makes the affidavit of verification and alleges therein that the peti- tion is true, except as to the matters therein stated to be alleged upon information and belief, and that as to those mat- ters he believes it to be true; and also swears that he verifies Ch. 7, § 164. OF THE PLEADINGS. 16t When Pleading must be Verified. the petition, because of the absence of the petitioner from the State, and that the grounds of his belief in the averments of the petition are the records of the Surrogate's Court, letters of the parties concerned, and conversations had with them. (Moorhoiise v. Hutchinson, 2 Dem. 429.) Although an infant, who appears by his special guardian, is still a party to the proceeding {Matter of Van Wagonen, 69 Hun 365, 23 Supp. 636, 52 St. Rep. 699), yet, for the purpose of verification, his special guardian is deemed the party; for he is appointed to prosecute or defend in behalf of the infant, and the pleading is his and not the infant's. (Clay v. Baker, 41 Hun 58, 2 St. Rep. 275.) Section 164. — When Pleading must be Verified. The Code requires " a written petition, duly verified " in each of several, special proceedings, as, for instance, to probate a will (§ 2614) ;- for the re - vocation of - pFe b«te-t"§~2M?-) ; to pro- bate heirship (§ 2654) ; for a decree vacating a probate of heir- ship (§ 2658) ; for letters of administration in case of in- testacy (§ 2662) ; and for revocation of letters testamentary or of administration. (§§ 2685 cC- 2G89.) In other cases, where the statute only calls for a petition, it need be neither written nor verified unless required by the surrogate as pro- vided in section 2533. Where a pleading is verified, because required by the statute or by the surrogate, the case is within section 523, made applicable by section 2534 : § 523. When Pleading iinsT be Vehified ; and When Veeification mat bb Omitted. — Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant hy his guardian ad litem, must also he verified. But the verification may he omitted, in a case where it is not otherwise specially prescrihed hy law, where the party pleading would he privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. . _ , ^ A pleading cannot he used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein. (1876 ch. 448.) These provisions, however, only " apply to a verification made pursuant to this Chapter" 18. (§ 2534.) And, where neither the statute nor the surrogate requires verification, but a pleading nevertheless has been actually verified, it seems that the subsequent pleading need not be verified ; for it is ex- pressly provided by section 2533 that " except where such a 163 PART I -. GENERAL PROCEDURE. Ch. 5, §§ 165, 166. Allegations and Denials. — Form : Verification by Party or Attorney. requirement " (by the surrogate) '' is made, or in a case where a ivritten petition is expressly required by this act, a petition, or the answer thereto, may be presented orally," and if pre- sented orally, it is incapable of verification. Section 165. — Allegations and Denials in Verified Pleading. Section 524 is made applicable by section 2534 : § 524. Form and Constehction or Certain Allegations and Denials in Vebified Pleading. — The allegations or denials in a verified pleading must, In form, be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleaijing. An allegation that the party has not sufficient knowledge or Information, to form a belief, with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or Information. (1876 ch. 448.) This section applies to all pleadings and to denials in the answer as well as to affirmative defenses. It assumes that when a party has no personal knowledge an averment or denial may be made upon information and belief ; and it treats every positive averment or denial as having been made on per- sonal knowledge^ and declares in substance that it is to be so regarded in a criminal prosecution. (Bennett v. Leeds Mfg. Co., 110 N. Y. 150; see Penal Law, 1909 ch. 88, § 1626.) Section 166.— Form : Verification by Party or Attorney. STATE OP NEW YORK \ County of >• ss. City of ) of the city of in said county, being duly sworn, says, that he is the petitioner (or the attorney for , the petitioner) named in the foregoing petition, and thst said petition is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (When made ty attorney, continue:) That the reason why this aflBdavit of verification is not made by the petitioner is that he is not within the county of where deponent resides, and capable of making the affidavit; (or, that all the material allegations of the petition are within the personal knowl- edge of deponent; or state other reason) ; and that the grounds of deponent's belief, as to all matters not stated upon his knowledge, are as follows; the information he has derived from an examination of Ch. 7, g§ 167, 168. OP THE PLEADINGS. 163 Service of Pleadings. — The Petition. the records of the surrogate's office and papers filed therein, and from letters of the petitioner and conversations had with him, and from an inspection of papers and documents in his possession relating to the matters set forth in said petition. {Or otherwise state ground of telief.) JiJtirat) [(.Signature.), Where an answer contains merely a denial of " any knowl- edge or information suflBcient to form a belief as to each and every allegation," etc., an affidavit of verification made by the attorney need not state any grounds of belief. {American Audit Co. V. Industrial Federation, 84 App. Div. 304, 82 Supp. 642.) Section 167. — Service of Pleadings. Both the petition and answer are made to the surrogate and filed in his office; and the Code does not require either to be served upon an adverse party or his attorney. The surrogate, however, may direct a copy of any pleading to be served upon a person interested ; and " a party who fails to comply with such a requirement may be treated as a party in default." (§ 253.3.) But it is an excellent practice — " more honour'd in the breach, than the' observance "—for attorneys to serve copies of pleadings upon each' other. Section 168.— The Petition. The subject-matter of the petition will vary according to the character of the particular special proceeding; but in some cases— as, for instance, the petition for probating a will — the Code requires it to set forth certain specified matters. It sTiould contain a plain and concise statement of the facts, constituting the claim of the petitioner, together with a de- mand of the relief to which he supposes himself entitled (§ 2533) ; but the relief sought should not be inconsistent, as where the court was asked to remove executors and to corii^ pel them to invest trust funds. {Cocks v. Barlow, 5 Redf> 406.) Moreover the subject-matter of two distinct special pro- ceedings may not be set forth in one petition, as, for instance, a petition for an accounting should not include an application ftr the appointment of an adniinistrator with the will an- 164 PART I : GENERAL PROCEDURE. Oh. 7, § 168. The Petition. nexed (Popham v. Spencer, 4 Redf. 399) ; nor should a petition for the revocation of letters testamentary include an applica- tion for the appointment of a temporary administrator. {Es- tate of Sohn, 1 Civ. Pro. Rep. 373.) Several proceedings of a dissimilar nature cannot be united ; and remedies which are regulated by distinct provisions of the Code should be separately pursued. For instance: a party cannot proceed by one petition to vacate a decree settling an executor's account; to revoke the executor's letters; to com- pel him to make a discovery; and to compel him to account. (Hood v. Hood, 1 Dem. 392.) Likewise, separate petitions by several persons for different kinds of relief cannot be blended into one proceeding, either by an order to show cause why the respective petitions should not be granted or by a citation is- sued thereon. {Biclc v. Murpliy, 2 Dem. 251.) All jurisdictional facts should be carefully set forth; for, in the absence of fraud or collusion, where the necessary par- ties have been duly cited or appeared the jurisdiction of the. court to make " a decree or other determination " is conclu- sively established, as against collateral attack, by an allegation of the jurisdictional facts contained in a duly verified petition used in the Surrogate's Court. (§ 2473.) Each person inter- ested in the subject-matter of the proceeding and necessary to be cited should be named in the petition, together with his place of residence when known; and, where persons to be cited constitute a class, the petition should set forth the name of each of them unless the name, or part of the name, cannot, after diligent inquiry, be ascertained by him, in which case that fact must be set forth ; " and he may also allege that there may be others whose existence is unknown to him." (§ 2518.) Where verification is required, the statutory provisions must be observed. As the Code does not name an oflScer, before whom the affidavit of verification must be made, it suffices if it be sworn to before any one authorized to administer an oath, '{Richmond v. Foote, 3 Lans. 244, 254.) Such officers, in addi- tion to the surrogate and the clerk of the Surrogate's Court '(§ 2481 suh. 12), are enumerated in section 842 of the Code. If the affidavit of verification be made outside the State the authority of the officer, before whom it is taken, must be cer- Ch. 7, §§ 169, 170. OF THE PLEADINGS. 166 The Answer. — Objections to an Executor. tified as required by section 844 [Matter of Wisner, 3 Dem. 11) ; and this has been held to be a jurisdictional matter so that such authority cannot be supplied by amending the verifi- cation. (Matter, of HotchJciss, 17 3Iisc. 670, s. c, as Rock- well's Estate, 41 SupjJ. 431.) Where an executor or administrator presents " to the Sur- rogate's Court his account and a written petition, duly verified, praying that his account may be judicially settled," under section 2728, it would seem that the account is really a part of the petition— although usually contained in a separate instru- ment ; but, at any rate, the account must now be filed with the petition, although this was not required prior to the amend- ment of 1894. {Chap. 421.) Section 169. — The Answer. Upon the return day of a citation issued upon the petition, or upon some adjourned day, the respondent may show cause why the- petition should not be granted ; and his answer con- taining any objections or matters of defense ordinarily may be made in an informal manner. However, the surrogate may require him to file a written answer, containing a plain and concise statement of the facts constituting his objection or defense and a demand of the decree, order, or other relief to' which he supposes himself to be entitled; but, unless such a requirement be made, the answer may be presented orally, in which case, the substance of it must be entered in the records Of the court. (§ 2533;) Moreover, the answer need not be verified unless required by the surrogate (§ 2533), or unless the petition has been verified pursuant to a requirement of the surrogate or of the statute. (§§ 2534 d 523.), Section 170. — Objections to an Executor. Upon the probate of a will, naming or authorizing the selec- tion of executors, a creditor of the decedent or a person in^ terested in the estate may file an affidavit setting forth, among other things, " specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and believes that there are such objections, and that he intends to file a specific statement of the same." 166 PART I : GENERAL PROCEDURE. Ch. 7, § 171-. Objections to an Account. (§§ 2636 & 2641.) Thereupon the surrogate must inquire into the objections, and, if they appear to be well founded, letters will be absolutely refused, or, in certain cases, may be issued to the person objected to upon his qualifying by giving a bond. This is really a special proceeding affecting a substantial right and determined by a final order or decree {Matter of Cady, 36 Eun 122 ; tut see dissenting opinion in Matter of Baldwin, 158 N. Y. 713) ; and as, in construing the Code, the word " aflSdavit " includes a " verified petition or answer in a special proceeding" (§ 3343 sui. 11) the case is really one where, under special provision of law, the special proceeding is com- menced by a petition, containing objections, and not by the service of a citation issued thereon. The case, therefore, fur- nishes no exception to the general rule that the only pleadings in the Surrogate's Court are a petition and answer. (See sec. 94 ante. ) Section 171. — Objections to an Account. The Code nowhere requires one who contests an account to file objections to it; and this was true also of the prior law. (Peck V. Sherwood, 56 N. Y. 615; Matter of Hall, 7 Ahb. N, G. 149; Thompson v. Mott, 2 Dem. 154.) The only statutory provisions, directly relating to the matter, are these in section 2728: • Upon the presentation of account and a petition, as prescribed in this sec- tion, the surrogate must issue a citation accordingly. On the return of a citation issued as prescribed in this section, the surrogate must false the ac- eount, and hear the allegations and proofs of the parties respecting, the same. Any party may contest the account, with respect to a matter affecting his interest in the settlement and distribution of the estate. (.See sec. — post) Evidently if thefe be a contest there must be " aUegations " to be heard by the surrogate ; and it always has been the prac- tice upon an accounting to require a contestant to set foi'th his objections in the form of distinct and specific allegations. (Bainiridge v. McGullough, 1 Eun 488; Metsger V; Metzger) 1 Brad. 265.) So it is said that in a special proceeding for the settlement of an account, the account and the objections form the pleadings from which the issues must be determined (Map ier of Eart, 60 Eun 516, s. c, as Matter of Johnston, 15 Supp. 239, 39 St. Rep. 521; Matter of Eeuser, 87 Eun 262, 33 Supp, 831, 67 St. Rep. 476) ; but it has been held that a general rule Ch. 7, § 171. ^ OF THE PLEADINGS. 167 Objections to an Account of the Surrogate's Court requiring an answer to be verified does not apply to objections to an account. (Thompson v. Mott, 2 Dem. 154.) Nevertheless it is scarcely proper to say that either an ac- count or the objections to it constitute a pleading distinct from the petition or answer. Where an executor or adminis- trator presents to the Surrogate's Court " his account and a written petition, duly veriiied, praying that his account may be judicially settled," as provided in section 2728, the account may be said to be part of the petition, and the so-called " ob- jections " to the account may constitute the ansiver of the contestant. The petition, in effect if not in form, is that the account as made be settled and allowed; and the contestant makes answer with allegations of error in the account as rea- sons why the petition should not be granted; and such an answer commonly is called the contestant's objections to the account. Even where an executor or administrator makes his account, in response to an order to show cause under section 2727, and does not file any petition for a voluntary accounting as therein authorized, his account as filed has a twofold ofiBce : It is an answer in the proceeding to compel him to account; and it also becomes the foundation of a proceeding for an ac- counting, and implies an oral petition that it may be settled and allowed as made, so that any objections of the contestant thereto constitute his answer. In a certain sense, therefore, " the account and the objec- tions thereto represent the pleadings from which the issues to be tried must be determined " ; but the Code nowhere recognizes objections to an account as constituting a distinct pleading. They are within the purview of section 2533 which authorizes the surrogate to require a party to file a written answer " containing a plain and concise statement of the facts constituting his claim, objection, or defense," and also to re- quire the " answer to be verified and a copy thereof to be served upon any other person interested." Undoubtedly by the answer of a contestant his objections to the account should be set forth as distinct allegations; but it is discretionary with the surrogate to allow the answer to be oral or written, verified or unverified, specific or general, 168 __ PART I : GENERAL PROCEDURE. Ch. 7, § 171. Objections to an Account. except that it must be verified if the petition has been verified pursuant to a requirement of the surrogate or of the statute. When an answer containing objections has been interposed, it is also discretionary with the surrogate to permit an amended answer containing supplemental objections. {Mat- ter of Turfler, 78 Hun 258, 29 8upp. 1151, 61 St. Bep. 283.), CHAPTER VIII. MISCELLANEOUS PRACTICE REGULATIONS. Section 172. Preliminary. 173. Some Statutory Provisions. 174. Mistakes, Omissions and Irregularities. 175. Amendments by the Court: Immaterial Errors, etc. 176. Relief against Omissions. 177. Returns by OflBcers. 178. Papers Lost or Withheld: Record of Paper, How Altered. 179. Defects in Affidavits and Bonds. 180. Service of Papers. 181. Mode of Service. 182. Double Time when Served through Post-Office. ^ 183. Service on Attorney: When not Required. 184. Service on Clerk or Surrogate for Party. 185. Service in New York City. 186. Requirements as to Papers for Service or Piling. 187. Form: Affidavit of Service on Attorney. 188. Form: Affidavit of Service on Party. 189. Form: Affidavit of Service on Clerk of Court. Section 172. — Preliminary. Many provisions of tlie Code, regulating the practice in a Surrogate's Court, are re-enactments cf earlier statutes which had been framed so as to enable a party personally to attend before the surrogate in ordinary matters pertaining to a de- cedent's estate; and under those statutes it was questioned whether an attorney at law, as such, had any standing in' the Surrogate's Court except in the same way that he is per- mitted to represent his client before a justice of the peace. And so the proceedings before this tribunal were characterized by much informality which has descended to our present Surro- gate's Court, although it has become a court of record and nowadays parties generally appear before it by their attorneyg^. In other courts of record the issues usually are made out- side the court, pursuant to well defined rules of practice con- tained in the Code or established by the court, and are brought tb' trial by appropriate notices and other proceedings ; but in 169 170 PART I : GENERAL PROCEDURE. Ch. 8, § 173. Some Statutory Provisions. the Surrogate's Court the issues are made up in court by peti- tions and answers addressed to the court which may forth- with " proceed to hear the allegations and proofs of the par- ties." In many cases written petitions are required by the Code, but otherwise the pleadings may be presented orally un- less the surrogate directs them to be in writing (§ 2533) ; and, excepting as the surrogate may " require a party to file a written petition or answer, containing a plain and concise statement of the facts constituting his claim, objection, or defense, and a demand of the decree, order, or other relief, to which he supposes himself to be entitled" (§ 2533), there are no general rules of pleading. Except in New York county there are no stated terms in a Surrogate's Court which " is always open for the transaction of any business, within its powers and jurisdiction" (§ 2504), and a proceeding therein is continued from day to day so that it is not abated nor put out of court by the absence of either the surrogate or a party on an adjourned day; but, in such event, it may be resumed by the voluntary reappearance of the parties or may be brought on for further hearing by an appropriate notice or order to show cause. {See sees. 52 tfe 53 ante.) However, the general rules of evidence and the substantive law are the same in all courts; but as to the matter of prac- tice and procedure the Surrogate's Court is trammelled less by statutory regulations than is any other court of record; Section 173. — Some Statutory Provisions. As we have seen already (sees. 72, 79 ante), by the Code various powers are given expressly to the surrogate, in court or out of court, among which are the following: to adjourn, from time to time, a hearing or other proceeding; by the is- suance of a supplemental citation or additional notice to bring into court all necessary parties who were not originally cited or notified ; to issue, under the seal of the court, a subpoena requiring the attendance of a witness residing or being in any part of the State, and to issue a subpoena duces tecum requir- ing such attendance together with the production of a book or paper material to any inquiry pending in his court; to punish any person for a civil or criminal contempt of court Ch. 8, § 173. MISCELLANEOUS PRACTICE REGULATIONS. 171 Some Statutory Provisions. in any case where it is expressly prescribed by law that a court of record may punish a person for a similar contempt and in like manner ; to open, vacate, modify, or set aside or to enter, as of a former date, a decree or order and to grant a new trial or a new hearing for fraud, newly discovered evi- dence, clerical error, or other suflScient cause; and, With respect to any matter not expressly provided for in the foregoing subdivisions of tbis section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute : and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred. (§ 2481; see sec. 72 ante.) It has been held that the words " in all matters subject to the cognizance of his court " mean " in all matters made, iy express provision of statute, subject to the cognizance of his court " (Hoes v. Ealsey, 2 Dem. 577; s. c, as Matter of Halsey, IZAbh't N. C. 353) ; that is, for example, such matters as those made subject to the jurisdiction of the Surrogate's Court by the general provisions of section 2472. When, therefore, the Surrogate's Court has general jurisdiction over a subject-mat- ter, but the precise way, wherein that jurisdiction is to be exercised has not been pointed out by any statute, the surro- gate may follow the practice formerly adopted in similar cases, by the Court of Chancery, and, more recently, by the Supreme Court, in the exercise of equity powers {Tomplcins v. Moseman, 5 Redf. 402; Matter of Whitehead, 3 Dem. Ill; Estate of Delaplaine, 12 Civ. Pro. Rep. 35) ; and so it has been held that the Surrogate's Court may, by an order to show cause, shorten the time of a notice of motion regardless of whether section 780, authorizing such an order, expressly ap- plies to this court. (Matter of Filley's Estate, 20 Bupp. 427, 47 Bt. Rep. 428.) Moreover it is provided also by rule 84 of the General Rules of Practice, applicable to the Surrogate's Court in common with all other courts of record (Judiciary Law, § 94), that In cases where no provision is made by statute or by these rules the pro- ceedings shall be according to the customary practice as it formerly existed in the Court of Chancery or Supreme Courf, in cases not provided for by statute or by the written rules of those courts. (Rule 84.) And by Code section 7, enumerating the general powers of all courts of record, the Surrogate's Court has full authority 178 PART I : GENERAL PROCEDURE. Ch. 8, § 174. Mistakes, Omissions and Irregularities. To devise and make new process and forms of proceedings, necessary to carry into effect tlie powers and jurisdiction possessed by if. (See sec. 72 ante.) In view of these provisions it is apparent that the Surro- gate's Court does not suffer from lack of authority to regulate suitably its procedure, no matter how unique may be the par- ticular matter of practice demanding consideration, so long as it is within the jurisdiction of the court. Moreover many of the general practice provisions of the Code are made applic- able by this section : § 2538. Certain Pkotisions made A-pPLiCABLn to Peoceedings in Sceho- ■GATES' CoDiiTS. — Except where a contrary intent is expressed in, or plainly implied from the context of, a proyisiou of this chapter, the following por- tions of this act, to wit : title first, and articles third and fourth of title sixth, of chapter eighth, and articles first and second of title third of chapter ninth, apply to Surrogates' Courts and to the proceedings therein, so far as 'they can be applied to the substance and subject-matter of a proceeding, with- out regard to its form. (1880 cli. 178.) Title first of chapter eighth (§§ 721-730) relates to "Mis- takes, Omissions, Defects and Irregularities " ; articles third and fourth of title sixth of chapter eighth (§§ 796-809) relate to " Service of Papers " and " Discovery of Books and Papers " ; and articles first and second of title third of chapter ninth (§ 870-913) relate to "Depositions, taken and to be used within the State " and to " Depositions, taken without the State, for use within the State." These provisions will be considered in this and the follow- ing chapter, as applied to proceedings in the Surrogate's Court. Section 174. — Mistakes, Omissions and Irregularities. As " the Surrogate's Court obtains jurisdiction in every case by the existence of the jurisdictional facts prescribed by statute and by the citation or appearance of the necessary parties" (§ 2474), it seems that sections 721-730 — relating to mistakes, omissions, defects and irregularities — which, by sec tion 2538, are made applicable to proceedings in the Surro' gate's Court " so far as they can be applied to the substance and subject-matter " thereof " without regard to its form," can only be invoked to remedy defects in matters of procedure when the necessary parties are regularly before the court. Indeed, the amendments which may be made under sections 721-723 are limited expressly to " omissions, imperfections, de- Ch. 8, § 175. MISCELLANEOUS PRACTICE REGULATIONS. 173 Amendments by the Court: Immaterial Errors, etc. fects, and variances * * * not being against the right and justice of the matter, and not altering the issue between the parties, or the trial," or where they do " not change substanti- ally the claim or defense," or where the error or defect " does not affect the substantial rights of the adverse party." A defect or an omission which goes to the jurisdiction of the court is not- an irregularity to be cured by amendment; but where the Surrogate's Court has jurisdiction of the subject- matter of a proceeding, and has obtained jurisdiction over the necessary parties, its power is abundant to remedy mistakes, omissions and irregularities in the procedure. Section 175. — Amendments by the Court : Immaterial Er- rors, etc. Under section 723, made applicable by section 2538, it seems that the Surrogate's Court, 'upon the trial or at any other stage of a special proceeding before or after a final order or decree therein, in furtherance of justice and upon such terms as it deems just, may amend any process, pleading, or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting an allegation material to the case ; or, where the amendment does not change substantially the claim or defense, by conforming the plead- ing or other proceeding to the facts proved. And, at every stage of the proceeding the court is required to disregard an error or defect in the pleadings or othez' proceedings, which does not affect the substantial rights of the adverse party.- Thus a citation may be amendefl by adding to the name of a person, who has been cited, words showing his representative capacity as an executor (Matter of Soule, 46 Hun 661, 12 Sti Rep. 692, aff'd 109 N. Y. 662) ; and a variance between the re- lief demanded in the petition and in the citation issued thereoH may be cured by amendment or be disregarded. [Spencer V; Popham, 5 Redf. 425.) So, too, a variance between a citation and the copy served may be cured by amendment. [Pryer v. Clapp, 1 Dem. 387.) It has been held that a defective service of citation upon an infant is cured by his appearance in the proceeding, pursuant to it, so as thereby to give the surrogate 174 PART I : GENERAL PROCEDURE. . Cii. 8, § 176. Relief Against Omissions. jurisdiction to appoint a special guardian for liim (Brick's Estate, 15 Ahh. Pr. 12) ; and, under subdivision 7 of section 721, where a report or decision has been rendered in favor of an infant party the decree thereon is not impaired or affected be- cause of his " appearance 1)1/ attorney.'' Usually mere irregu- larities in the appointment of a special guardian may be cured by amendment or a supplemental order {See Matter of Luce, 17 WJcly. Dig. 35; Dennis v. Jones, 1 Dem. 80; Price v. Fenn, 3 Dem. 341; s. c, as Estate of Fenn, 8 Civ. Pro. Rep. 206) ; but, where the special guardian is not appointed until after a decree has been entered, the irregularity cannot be cured. (Matter of Malioney, 34 Hun 501; Matter of Bowne, 6 Dem. 51.) The infant is entitled to be represented during the entire progress of a proceeding and particularly upon the hearing. It is provided in section 2474 that An objection to a decree or otber determination, founded upon an omission tlnerein, or In the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any Intermediate proceeding, required by law to be taken, is available only upon appeal. But, for the better protection of any part.?, or other person interested, the Surrogate's Court may, in its discretion, allow such a defect to be supplied by amendment. (See sec. 89 ante.) Section 176. — Relief Against Omissions. Section 724 applies to the Surrogate's Court (§ 2538) : § 724. Relief Against Omissions, etc. ; Amendments to CONrOEM Pito- CEEDiNGS. — The court may, likewise, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect ; and may supply an omission in any proceeding. Where a proceeding, taken by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit an amendment thereof, to conform it to the provision. (1876 ch. 448.) It has been held that the power of a court of record to re- lieve from judgments taken through " mistake, inadvertence, surprise or excusable neglect," is not derived altogether from section 724 authorizing this to be done " at any time within one je&t after notice " ; but that, in exercising its control over its own judgments the court may open them upon the applica- tion of any one for a sufficient reason in the furtherance of justice. This power does not depend upon any statute but is inherent. (Ladd v. Stevenson, 112 N. Y. 325; l)ut see Matter of Oaffney; 116 App. Div. 583, 101 Sujjp. 882^ aff^d 189 N. Y. 503.) Ch. 8, §§ 177,-179. MISCELLANEOUS PRACTICE REGULATIONS. 175 Returns by Officers. — Defects in Affidavits and Bonds. Section 177. — Returns by Officers. A Surrogate's Court, to which, a return is made by a sheriff or other officer, may, in its discretion, direct the return to be amended, in matter of form, either before or after the final order or decree. (§§ 725 c£ 2538.) Section 178. — Papers Lost or Withheld : Record or Paper, how Altered. Sections 726 and 727 also apply to the Surrogate's Court (§ 2538) : § 726. PAPEiis Lost oe Withheld ; . How Supplied. — Where an original pleading or paper is lost, or withheld hy any person, the court may authorize a copy to be filed and used, instead o( the original. (1876 cTi. 448.) § 727. Oeder of Coukt ; When Necbssaut to Amend. — A process, plead- ing, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, without the direction of the court, or of another court of competent authority; except in a. case where a party, or his attorney, is specially authorized by law to amend a pleading. (1876 ch. 448.) Section 179. — Defects in Affidavits and Bonds. " The want of a title, or a defect in the title, of an affidavit, idoes not impair it, if it intelligibly refers " to the special pro- ceeding, in which it is made. (§§ 728 £ 2538.) Section 729 also applies to the Surrogate's Court (§ 2538) : § 729. Certain Bonds, etc.. When Sufficient. — A bond or undertaking, re- quired by statute to be given by a person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the pre- judice of the rights of the party, to whom, or for whose benefit it is given. (1876 eh. 448.) Thus it has been held that where a paper, purporting to be an affidavit taken in a judicial proceeding, indicates the pro- ceeding in which it is made the omission of the deponent's name from the body of the instrument will not invalidate the affidavit if it be regular in other respects {People ex rel. Kent/on v. Sutherland^ 81 N. Y. 1) ; and it seems that the omis- sion of an affidavit of justification, although required to be attached to an undertaking when filed, may be disregarded under section 729 or be supplied subsequently by an amend- ment under section 730. (ClarJc v. Hooper, 69 Eim 445, 23 8upp. 447, 52 St. Rep. 631.) Where such a bond or undertaking is defective the Surro- 176 PART I : GENERAL PROCEDURE. Ch. 8, §§ 180, 181. Service of Papers. — Jtode of Service. gate's Court or the surrogate, " that would be authorized to receive it, or to entertain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly ; " and thereupon it will be valid from the time of its execution. (§§ 730 d- 2528.) It goes without saying that an undertaking cannot te amended excepting upon the application or with the consent of those who executed it; for no court can change a contract without consent of the parties to it. {I.anfjlcjj v-. Warner, 1 N. Y. 606.) A defective affidavit of justification by a surety may be amended {Bell v. Moran, 25 Ai^p. Div. 461, 50 Supp. 982) ; and an amendment has been allowed by striking out a provision making the sureties liable for more than was in- tended. {O'Sullivan v. Connors, 22 Hun 137.) Section i8o. — Service of Papers. Where a notice or other paper is to be served the provisions of sections 796-802 " apply to Surrogates' Courts and to the proceedings therein, so far as they can be applied to the sub- stance and subject-matter of a i^roceeding, without regard to its form" (§ 2538) ; but, except the provisions of section 801a, they do not apply to the service of a citation or other process^ or of a paper to bring a party into contempt, or to a case where the mode of service is specially prescribed by law. (§ 802; am'd 1909 ch. 65.) "' Section i8i. — Mode of Service. Except a notice of appeal [see § 2574) any notice or other paper in a special proceeding in the Surrogate's Court may be served on a p^rty cr an attorney either by delivering it to him personally (§§ 796 (£ 2538), or, as provided by section 797: ' § 797. Sebvice or Papees, Mode op. — Where the service is not personal, it may be made as follows : 1. Upon a party or an attorney, through the post-otEce, hy depositing the paper, properly inslosed in a post-paid wrapper, in the post-ofBce or in any post-otBce box regularly maintained by the government of the United States and under the care of the post-office of the party, or the attorney serving it, directed to the person to be served at the address, within the State, designated by him for that purpose, upon the preceding papers in the action ; or, where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can con- veniently be obtained concerning the same. 2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof. 3. Upon an attorney, if there is no person in charge of his office, and the service is made between six o'clock in the morning and nine o'clock in the Ch. 8, § 181. MISCELLANEOUS PRACTICE REGULATIONS. 177 Mode of Service evening, either by leaving It, In a conspicuous place in his office, or by de- positing it, inclosed in a sealed wrapper, directed to him in his ofiBce letter- box ; or, if the office is not open, so as to admit oi leaving the paper therein, and there is no office letter-box, by leaving it at his residence, within the State, with a person of suitable age and' discretion. 4. Upon a party, by leaving the paper at his residence within the State, be- tween six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion. (1897 ch. 40.) The attorney referred to is the one who has appeared for the party; and where an attorney has once appeared, notices and other papers may be served upon him, in behalf of the party for whom he has appeared, until another attorney has been substituted. {Matter of White, 52 App. Div. 225, 65 Stipp. 168; app. dis. 170 N. T. 575.) Unless otherwise required by statute, good service of a notice or other paper may be made by delivering a copy thereof to the adverse party or his attor- ney. {Smith V. Kerr, 49 Eim 29, 1 Supp. 454, 17 St. Rep. 351.) It will be observed that service may be made through the post' office even though both parties reside in the same place '{Whitney v. Haggerty, 7 St. Rep. 766) ; but, where service is made by mail, the paper, properly addressed and enclosed in a post-paid wrapper, must be deposited in the post-ofBce — or letter-box under care of the post-office — " of the party, or attor- ney serving it." If service is made by depositing the paper in the " office letter-box " it must be enclosed in a sealed wrapper and directed to the attorney, otherwise it may be returned. {Fitzgerald v. DaUn, 101 App. Div. 261, 91 Supp. 1003.) If service be made under the provision authorizing the paper to be left "in a conspicuous place in his office" it is neces- sary that " access to the office should have been first at- tained " {Livingston v. N. T. El R. R. Co., 58 Hun 131, 11 Supp. 359, 33 St. Rep. 818, aff'd 125 N. Y. G95) ; but where access to the office is obtained in an irregular manner, as where the door is unlocked by the janitor, the service is bad. {Vail V. Lane, 67 Bari. 281, 4 Hun 653.) Service by leaving the paper in a conspicuous place in the office, can be made when the office is found unlocked {Haight v. Moore, 36 Super. 294) ; but it is not good when effected by thrusting the paper under the door of an attorney's office {Rogers v. RocJcwood, 13 Supp. 939, 36 St. Rep. 919) or by throwing it over the transom, the office being closed. {Claflin v. DuBois, 1 Supp. 150, 15 St. Rep. 963) . However if a paper has been served in either manner and 1V8 PART I : GENERAL PROCEDURE. Ch. 8, §§ 182, 18?. When Served through Post-Offlce. — Service on Attorney : When not Required. is retained u-'ithoiit objection, the service, although irregular, will stand. {Rogers v. Rockwood, 13 Swpp. 939, 36 St. Rep. S19.) Service through the post-office has been held to be good if the paper gets to its destination hy mail; but if, by reason of a return direction on the envelope or of short postage, the paper fails to reach the attorney or party to whom it is mailed, there is no service. [Appeal Printing Co. v. Sherman, 99 App. Div. 533, 91 Supp. 178.) Under section 2574 a notice of appeal, from an order or de- cree of a Surrogate's Court to the Appellate Division, must be personally served within the State; and there seems to be no provision for service of such a notice upon a party without the State, or through the post-office, or otherwise than personally. Section 182. — Double Time when Served through Post-Office. Section 798 is made applicable by section 2538 : "§ 798. Where it is prescribed in tliis act, or in the General Rules of Practice, that a notice must be given, or a paper must be served, within a specified time, before an act is to be done ; or that the adverse party has a specified time, after notice or service, within which to do an act ; if service is made through the post-ofllcc, the time so required or allowed is double the time specified ; except that service of notice of trial may be made, through the post-ofBce, not less than sixteen days before the day of trial, including the day of service ; and provided, that the time of a party to amend his own pleading shall not be extended by the service thereof by mail. (1909 ch. 423.) The Court of Appeals recently held, under sections 542 .and 798 as they were in February 1909, that a party serving an original pleading hy mail had forty days in which to serve an 'amended pleading {Sehlegel v. Church of Holy Trinity, 194 N. Y. 391) ; and thereupon section 798 was amended, by adding the clause above italicized, but without any corresponding modification of section 542. Where notice of the entry of an order or decree has been served by mail the time is doubled within which, under section 724, the court may relieve a party from such order or decree upon the ground that it was taken against him through his " mistake, inadvertence, surprise or excusable neglect ; " and an application for such relief may be made at any time within two years after such notice. (Atkinson v. Airaham, 78 Appt Div. 498, 79 Supp. 680.) Section i83.-c-Service on Attorney : When not Required. Section 799 is made applicable by section 2538 : (?A'^ Ch. 8, §§ 184, 185. MISCELLANEOUS PRACTICE REGULATIONS. 179 Service on Clerk or Surrogate for Party. — Service in New York City. § 799. ■^'HEN Paper to be Served on Attorney ; When Service not Ee- QUiRED.-^Where a party has appeared, a notice or other paper, required to be served in the special proceeding, must be served upon his attorney. If a responilcnt has not appeared, service of a notice or other paper, in the ordinary proceedings in the special proceeding, need not he made upon him, unless lie is actually confined in jail, for want of hail. (1876 ch. 448.) It has been held that a party will be bound by service upon his attorney, whose authority to appear for him has been revoked, where he does not procure the substitution of another attorney or notify the other parties of the revocation. (Matter of White, 52 App. Div. 225, 65 Supp. 168.) But service of an order to show cause must be made personally upon the party before it can be enforced by contempt proceedings. [See Ooldie V. Goldie, 77 App. Div. 12, 16, 79 Supp. 268.) Section 184. — Service on Clerk or Surrogate for Party. Section 800 is made applicable by section 2538 : § 800. When Service may be Made on Clerk tor Non-Resident. — Where A party to a special proceeding, Who has appeared in person, resides without the State, or his residence cannot, with reasonable diUigence, be ascertained, and he has not designated an address, within the Stale, upon the preceding papers, service of a paper upon him may be made, hy serving it on the clerk< (1876 ch. 448.) It is also provided in section 2574, relating to appeals from orders or decrees of the Surrogate's Court : Where a party, who was duly cited, did not appear in the Surrogate's Court, notice of appeal must be served upon him personally, if he can, with due diligence, he found within the county ; otherwise it may he served by depositing it, indorsed with a direction to the party, with the surrogate oi; the clerk of the Surrogate's Court. (See sec. 361 post.) Section 185. — Sefvice in Ne-wr York City. Section 801 is made applicable by ssction 2538 P § 801. Service Through Branch PosT-OFricB in New York City. — In the city of New York, where a paper is served, or a return is made, through thS post-ofBee, the deposit of the package in a branch post-offlce has the same effectj as a deposit in the general or principal post-office of that city. (1876 cTi, 448.) This provision seems superfluous in view of section 797 which authorizes aservice through the post-ofBce in any place by depositing the paper "in the post-office or in any post- offlce tax regularly maintained by the government of the United States and under the care of the post-office of the party, or the attorney serving it." (1897 ch. 40.) 180 PART I : GENERAL PROCEDURE. Oh. 8, §§ 186, 187. Requirements as to Papers. — Form: Affidavit of Service on Attorney. Section i86.— Requirements as to Papers for Service or Filing. It is provided in section 796, made applicable by section 2538, with reference to papers for service or filing : All papers so served or required to be filed in an action, shall be plainly and legibly written or printed in black Inlj upon durable paper o£ good material, and, i£ imprinted by typewriter, such paper shall be of linen quality, equal in weight to sixteen pounds to the double cap ream, of seventeen by twenty- eight inches in size, and service or filing of papers printed or written upon such paper with such inlj shall be deemed a compliance with the terms of ,this section. The transcribed minutes of a stenographer taken in any • * * hearing or special proceeding « * * shall be written or typewritten on paper of the size hereinafter specified; and all cases, briefs, points or other papers required or used on an appeal from any judgment, determination or order of any court or board shall be printed (when required to be printed by the rules of any court) on paper of a uniform size, as follows : The paper must be ten and one-half inches by eight Inches, and bound on the edge of the greatest length. (1888 ch. 496.) All papers for service or filing must comply also with the re- quirements of rule 19 of the General Eules of Practice which evidently applies to proceedings in the Surrogate's Court (see Judiciary Laio § 94) ; and by rule 2 of those Rules it is pro^ vided that the papers in cases pending in the Surrogate's Court shall be filed " in the ofiQce of the surrogate," and also that " all papers served or filed must be endorsed or subscribed with the name of the attorney or attorneys, or the name of the party if he appears in person, and his or their oflSce address, or place of business." Section 187.— Form : Affidavit of Service on Attorney. {Title of Proceeding.) County, ss. of the city of , in said county, being duly sworn, says: that he is of full age and is the attorney for the petitioner in the above entitled proceeding, (or a clerk in the law oflBce of the at- torney, etc.) and that on the day of , 19. ., he served the annexed notice (or other paper, describing it) on Esq., Who is the attorney for , a respondent herein, (*) by delivering a true copy thereof to him personally, in said city of ,- and leaving the same with him. (If attorney was absent from office, proceed from (*) during his absence from his ofiBce, by leaving a true copy thereof with ; , who is a clerk therein and was, at the time, the person having eharge thereof. (Or proceed from (*):) during his absence from his Ch. 8, § 188. MISCELLANEOUS PRACTICE REGULATIONS. 181 Form:' Affidavit of Service on Party. ofBce, by leaving a true copy thereof at o'clock in the forenoon of that day in a conspicuous place in said office, which was open at the time and without any person in charge thereof. {Or proceed from (*):) by depositing a true copy thereof, enclosed in a sealed wrapper directed to him, in his office letter-box, his office being not open at the time so as to admit of leaving said paper therein. {Or pro- ceed from (*):) at .... o'clock in the evening of that day, by leaving a true copy thereof at the residence of said in the city of N. Y. with , who is a son of said being of the age of about 18 years and a person of suitable age and discretion, the office of said being, at the time, not open so as to admit of leaving the paper therein and there being no office letter-box thereto. {If service is through post-office, proceed from (*):) through the post-office, by depositing a true copy thereof properly enclosed in a post-paid wrapper, in the post-office {or in a post-office box regularly maintained by the government of the United States and under the care of the post-office) of deponent, {or, name party, if affiant is not hii attorney) in said city of , directed to said at No Street in the city of N. Y., which is thd address within the state designated by him, for the purpose of such service. {Or which is his place of residence. Or, which is the place wh-ere he keeps an office, according to the best information which can conveniently be obtained concerning the same by deponent, said having made no designation upon the preceding papers in this proceeding, or otherwise, of any address within the State for the service of papers upon him herein.) iJurat) {Signature.). Section i88.— Form : Affidavit of Service on Party. {Title of Proceeding.) County, ss. : , of the city of in Said county, being duly sworn, says: that he is of full age and is the attorney for the petitioner in the above entitled proceeding, {or: a clerk in the law office of the attorney, etc.) and that on the day of 19—, he served the annexed notice {or other paper, describing it) on , a respondent herein, by delivering a true copy thereof to him personally, in said city of and leaving the same with him; and that said has appeared herein personally, and not by attorney: {Or: that said has not appeared herein either by at- torney or otherwise, but is, at the present time, confined in the county jail for want of bail, as deponent is informed and verily believes. {Jurat) {.Signature.) 182 PART I : GENERAL PROCEDURE. Ch. 8, § 189. — — ^ — — > Form: AfBdavit of Service on Clerk of Court. Section 189, — Form : Affidavit of Service on Clerk of Court. (Title of Proceeding.) County, ss. of the city of , in said county, being duly sworn, says: that he is of full age and is the attorney for the petitioner In the above entitled proceeding in the Surrogate's Court of county, (or a clerk in the law office of the attorney, etc.) and that on the day of , 19 — , he served the annexed (*) notice (or other paper, describing it) on , a respondent herein by delivering a true copy thereof to , the clerk of said Surrogate's Court personally, and leaving the same with him; that said has appeared in this proceeding personally, and not by any attorney, and resides without the State in the city of State of (or: that his residence cannot with reasonable diligence be ascertained by deponent) ; and that he has not designated an ad« dress, within the State, upon any of the preceding papers in this pro- ceeding, or otherwise. (If paper is notice of appeal (see § 2574), proceed from (*) notice of appeal upon , a respondent herein, by depositing a true copy thereof, endorsed with a direction to said , with the clerk of said Surrogate's Court; that said was duly cited in this proceeding but did not appear in the Surrogate's Court herein, either personally or by and attorney, and that he cannot with due diligence be found witliiu the county (state facts showing wTiyt with due diligence, he cannot he found, as, for instance :) for the reason that he is neither within the county nor the State, but resides in the city of , State of where he is at the present time, as deponent is informed and verily believes. S,Jurat), .(SignatUTBiX CHAPTER IX. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. Section 190. Rules of Evidence. 191. Witnesses: Court may Compel Attendance. 192. Of the Subpoana. 193. Subpoena for Hearing before Referee. 194. Subpoena Duces Tecum. 195. Form: Subpoena. 196. Service of Subpoena: Penalty for Disobedience. 197. Proof of Service. 198. Form: Affidavit of Service. 199. Form: Affidavit for Attachment against Witness. 200. Form: Order for Attachment. 201. Form: Attachment. 202. Habeas Corpus to Testify. 203. Form: Affidavit for Habeas Corpus to Testify. 204. Form: Habeas Corpus to Testify. 205. Depositions taken within the State. 206. Testimony of Aged, Sick or Infirm Witness. 207. Same Subject: Witness in another County. 208. Forms: Affidavit and Order for Examination of Witness by Surrogate. 209. Form: Order for Examination of Witness by Surrogate of Another County. 210. Form: Notice of Examination. 211. Return of Examination Taken by Surrogate of Another County. '212. Form: Return of Examination. 213. Form: Affidavit for Examination of Witness before Referee. 214. Form: Order for Examination of Witness before Referee. 215. Deposition by Consent of Parties. 216. Form: Stipulation to Take Deposition. 217. Depositions Taken Outside the State. 218. Commis:;on with Interrogatories. 219. Commission to Examine upon Oral Questions. 220. Open Commission. 221. Letters Rogatory. 222. Commissions Generally: Procedure. 223. Same Subject: Depositions. 224. Same Subject: Deposition how Taken. 183 184 PART I : GENERAL PROCEDURE. Ch. 9, § 190. Rules of Evidence. Section 225. Same Subject: Execution and Return of Commission or Order to Take Depositions. 226. Same Subject: Certificate of Execution. 227. Same Subject: Procedure after Return. 228. Interrogatories and Depositions in Foreign Language. 229. Form: Affidavit for Commission. 230. Form: Notice of Application for Commission. 231. Form: Order for Commission. 232. Form: Commission. 233. Service and Settlement of Interrogatories. 234. Form: Interrogatories to Annex to Commission. 235. Form: Notice for Settlement of Interrogatories. 236. Form: Notice of Examination upon Oral Questions, 237. Form: Stipulation for Commission. 238. Form: Letters Rogatory. 239. Discovery of Books and Papers. 240. Discovery: When Compelled. 241. Petition for Discovery. 242. Order to Show Cause. 243. Order for Discovery. 244. Form: Petition for Discovery. 245. Form: Order to Show Cause why Discovery should not be Allowed. 246. Form: Order Allowing Discovery or Inspection. 247. Witness Incompetent: Personal Transactions with De- cedent. 248. Same Subject: Of the Disqualifying Interest. 249. Same Subject: Release of Interest. 250. Form: Release of Legacy. Section 190. — Rules of Evidence. The general rules of evidence are operative in tlie Surrogate's Court as in otlier courts of record. Section 3347, wliereby the application of certain portions of the Code is regulated and limited, contains no qualifying reference to its ninth chapter (§§ 828-962) entitled "Evidence"; and this chapter applies to the Surrogate's Court, unless there be some particular excep- tion by reason of repugnancy. Therein are general rules governing the competency of a Avitness, and evidence in par- ticular cases (§§ 828-841); "the administration of an oath or affirmation" (§§ 842-851); the method of compelling the at- tendance and testimony of a witness (§§ 852-869); depositions taken within or without the State and to be used within the State (§§ 870-913); and documentary evidence. (§§ 921-962.) Ch. 9, § 191,193. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 183 Witnesses: Court may Compel Attendance. — Of the Subpoena. Moreover the Surrogate's Court, as a court of record, has gen- eral powers under Code section 7 : 1. To issue a subpoena, requiring the attendance o£ a person founa in the State, to testify in a cause pending in tlaaf court ; subject, however, to the limitations prescribed by law, with respect to the portion of the State in which the process of a local court of record may be served. 2. To administer an oath to a witness, in the exercise of the powers and duties of the court. • * • (See sec. 78 ante.) For convenience, some of these general rules which are ap^ plicable to the Surrogate's Court will be noticed. Section 191. — Witnesses : Court may Compel Attendance. The attendance of a witness may be compelled by subpoena ; and the Surrogate's Court has the same power, as any other court of record, " to issue a subpoena, requiring the attendance of a person found in the State, to testify in a cause pending in that court." (§7.) It is provided also in section 2481 that a surrogate in court or out of court has power : 3. To issue, under the seal of the court, a subpcena, requiring the attendance- of a witness, residing or being in any part of the State ; or a subpoena duces t,ecum, requiring such attendance, and the production of a book or paper- material to an inquiry pending in the court. (Sec sec. 72 ante.) The Surrogate's Court, as a court of record, also has power^ to punish by fine and imprisonment, or either, " a person sub- poenaed as a witness, for refusing or neglecting to obey the- subpoena,- or to attend, or to be sworn, or to answer as a wit- ness " {Judiciary Law § 753 sui. 5) ; and also " to punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner." (§ 2481 sui. 7.) By the Revised Statutes the surrogate was authorized to punish disobedience to a subpcena and also to punish witnesses for refusing to testify (2 R. 8. 221 § 6) ; but his powers in this regard are now governed by the statutes applicable to all courts of record. Section 192.— Of the Subpoena. The subpoena is a mandate of the court (§ 3343 sui. 2) ; and it " must, except where it is otherwise specially prescribed by law, be made returnable before the. surrogate from whose court 186 PART I ; GENERAL PROCEDURE. Ch. 9, § 193, Subpoena for Hearing before Referee. it was issued, and may be served or executed in any county." (§ 2515.) It is tested in the name of the surrogate in whose court the proceeding is pending (§ 23),. and it must be sub- scribed or indorsed with the name of the surrogate " by whom or by whose direction it was granted, or the attorney for the party, or the person at whose instance it was issued " ; and if so subscribed or indorsed, it is neither void nor voidable by reason of having no seal or a wrong seal thereon or of any miS' take or omission in the teste thereof, or in the name of the clerk, unless it was issued by special order of the court. (§ 24.) Formerly it was provided by the Revised Statutes that minutes of all subpoenas issued out of the Surrogate's Court should be entered in a book (2 B. 8. 222 § 7) ; but this no longer is required. Section 193. — Subpoena for Hearing before Referee. Where the surrogate has appointed a referee it is provided ii^ section 2546 that Such a referee has the same power * * * as a referee appointed by the Supreme Court, for the trial of an Issue of fact in an action ; and the pro- ■ visions of this act, applicable to a reference by the Supreme Court, apply to a reference made as prescribed in this section, so far as they can be applied In substance without regard to the form of proceeding. (See sec. 257 post). Where the reference is by the Supreme Court, a witness may be subpoenaed to testify before the referee, and, in a propeT case, to bring with him a book, document or other paper, as upon a trial by the court (§ 1017) ; and upon the trial of an issue of fact, the referee exercises the same power as the court, " to compel the attendance of a witness by attachment, and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify." (§ 1018.) Except' as it requires the witness to attend before the referee, the subpcena may be in the same form, and be issued in the same manner, as where the trial is before the surrogate. Under the former practice, where an account was referred to an auditor the subpoenas were issued by the surrogate returnable before the auditor. It is provided by section 854, among other things, that when a referee is " expressly authorized by law to hear, try, or de- termine a matter, or to do any other act in an oflScial capacity, Ch. 9, § 194. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 187 Subpcena Duces Tecum. in relation to which proof may be taken, or the attendance of a person as a witness may be required," a subpoena may be issued, hy and under the hand of the referee, requiring the person to attend. Although this section does not extend to '•' a matter arising, or an act to be done, in an action in a court of recoi'd," it seems applicable to a reference in a special proceeding in the Surrogate's Court ; and if it shall be so held, the subpoena should be issued by the referee. {See People ea> rel. Jacols v. Ball, 37 Hun 245; Morris v. Hunken, 40 App, Div. 129, 132, 57 Supp. 712 ; Lowther v. Lowther, 115 App, Div> 307, 100 8upp. 965.) Section 194.— Subpoena Duces Tecum. If a person has a book or paper, which is required upon a trial or hearing in the Surrogate's Court, its production may be secured by a subpoena duces tecum; but a witness may not be compelled to produce a look of account " otherwise than by an order requiring it, or by a subpcena duces tecum " served at least five days before the day he is required to attend. (§ 867.) If the production of a will or any other document be sought it must be secured by a subpoena duces tecum {Matter of FooS) S Dem. 600) ; and an order may be resorted to only where a book of account is required. At any time after service of a subpoena or order, requiring the production of a book of account, the witness may obtain, upon such a notice as the surrogate or referee prescribes, an order relieving him wholly or partly from the obligations im= posed upon him by such subpcena or order upon such terms a^ justice requires. (§ 867.) Any person who is served with a subpcena duces tecum is bound to attend accordingly with the book or document if he has it {Lane v. Cole, 12 Barb. 680) ; but he is not bound to produce it until he has been sworn as a witness, and then he may state upon oath any reasons why he should not do so- {Aikin v. Martin, 11 Paige 499.) The court, however, and not the witness is to judge the sufficiency of any excuse. (John O'Toole's Estate, 1 Tucker 39.) 188 PART I : GENERAL PROCEDURE. Ch. t9, § 195, 196. Form: Subpoena. — Service of bubpoeua: Penalty for Disobedience. Section 195. — Form : Subpoena. THE PEOPLE OP THE STATE OF NEW YORK. To Send Greeting: We Command you (and each of you) that, all business and excuses being laid aside, you (and each of you) personally appear and attend before our sur- rogate of county, at a Surrogate's Court to be held in and for said county at the surrogate's office in the city of , N. Y., (or, before Esq. , a referee duly appointed under an order of the Surrogate's Court of county, at his office No Street N. Y.) on the day of , 19. ., at 10 o'clock in the forenoon of that day, to testify and give evidence in a certain special proceeding now pending in said court (or, before said referee) instituted for the probate of the last will and testament of , deceased {or, entitled in the flatter of, etc. , (or otherwise describe proceeding) on the part of , the petitioner therein. (If production of account book or paper is souyTd, add:) and you are hereby re- quired to bring with you and, then and there, to have and produce (describe book or paper.) And for a failure to attend you will be deemed guilty of a contempt of court, and be liable to pay all damages sustained thereby, by the party ag- grieved, and forfeit fifty dollars in addition thereto. In Testimony whereof, we have caused the official seal of our said Surro- gate's Court to be hereto affixed. Witness Hon , surrogate of our said county, at the city of , N. Y., on the day of r 19... L. S. Surrogate. (or. Clerk of Surrogate's Court.) [{Signature) " Petitioner's Attorney, Na r ■ . -;^. ■■- , N. Y. Section 196.— Service of Subpoena : Penalty for Disobe-' dience. The following sections apply to all courts of record : § 852. MoDB or Sebving Suepcena Issued Out of a Codht. — A subpcena; fssued out of the court, to compel the attendance of a witness, and, where the subpoena so requires, to compel him to bring with him a bools or paper, must be served as follows : 1. The original subpoena must be exhibited to the witness. 2'. A copy of the subpcena, or a ticket containing its substance, must bS delivered to him. . . 3. The fees allowed by law, for travelling to, and returning from, the place tfbere he is required to attend, and for one day's attendance, mijst be {)aid or tendered to him. (1876 eft. 448.) Ch. 9, § 196. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 189 Service of Subpoena: Penalty for Disobedience. § 853. Penalty foe Disobedience. — A person so subpoenaed, who fails, without reasonable excuse, to obey the subposna, or a person who fails, with- out reasonable excuse, to obey an order, duly served upon him, made by the court or a judge, in an action, before or after flnal judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or a paper, is liable, in addition to punishment for contempt, tor the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading. (1876 eft. 448.) § 3318. Witnesses' Fees Geneeally. — A witness in an action or a special proceeding, attending before a court o£ record, or a judge thereof, is entitled, except where another fee is specially prescribed by law. to fifty cents for each day's attendance ; and, if he resides more than three miles' from the place of attendance, to eight cents for each mile, going to the place of attendance. (1880 cJt. 178.) Upon the service of a subpoena the requisite fees must be paid else the witness is not obliged to attend ; and if, without payment of his legal fees, the witness does attend he is not obliged to remain or be sworn. {Hurd v. Swan, 4 Denio 75.) Each witness — even an expert — upon payment of the fees prescribed by law, is compelled to attend and has no right to demand more as a condition of such attendance; and where more than the legal fees of witnesses has been paid to experts the excess is not a legal disbursement in the proceeding. {Mat- ter of Bender, 86 Hun 570, 33 Supp. 907, 67 St. Rep. 682.) Although an expert witness, who has been duly subpoenaed and paid the legal fees, must attend and answer such questions as are put to him, he is not thereby required to examine into the case or use his skill or knowledge to form an opinion, or' to attend and hear or consider other testimony, so as to be qualified to give an opinion as an expert. {People v. Mont- gomery, 13 Ahd. Pr. N. S. 207.) The Surrogate's Court has power to enforce its subpoenas. In section 2481 it is provided that a surrogate has power : _ I _ 7. To punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner. (See sec. 72 ante.) Section 753 of the Judiciary Law (1909 ch. 35) provides for contempts punishable civilhj, and one of them is the case of " a person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness " ; and among those acts which a court of record 190 PART I ; GENERAL PROCEDURE. Ch. 9, §§ 197, 198. Proof of Service. — Form: Affidavit of Service. has power to punish for criminal contempt (see Judiciary Law § 750) is the " wilful disobedience to its lawful mandate." The proceedings to punish a contempt of court, other than a criminal contempt, are now regulated by article 19 of the Judiciary Law (1909 ch. 35), entitled "Contempts", wherein are re-enacted former Code sections 2266-2292. {See People ex rel. Jones v. Davidson, 35 Hun ill; sees. 317-333 post) Section 197. — Proof of Service. It is provided in section 2532 that " proof of service of a citation, or a siibpcena, issued from a Surrogate's Court, must be made in the manner prescribed by law, for proof of service of a summons issued out of the Supreme Court." (^ee sec. 434 post t& sec, 120 ante.) I ss. Section 198.— Form : Affidavit of Service. STATE OF NEW YORK County of ; . . of the city of in said county and statS being duly sworn says: that he is more than twenty-one years of age and that on the day of 19.., at No fetreet in the city of , N. Y. (or otherwise stat^ place of service within the State) he personally served the annexed subpoena upon (one of the persons) named therein, and to whom it ii directed; and that such service was made in the following manner:' t)eponent then and there exhibited said original subpcena, hereto an- nexed, to said and at the same time delivered a copy thereof to him, and left it with him, and then and there paid him the fees allowed by law, for traveling to, and returning from the place' where he is required by said subpoena to attend, and for one day's at' tendance pursuant thereto, viz: eight cents for each mile going to said place of attendance, and fifty cents for such attendance, in all amount ing to the sum of dollars; and deponent further says that he personally knows said and knows him to be the' same person (or one of the persons) named in said subpoena and to tvliom it is directed. (Jurat) iSignature.y. The mileage fees of eight cents a mile need be paid only, wliere the witness resides more than three miles from the place #here he is required to attend. (§ 3318.) Ch. 7, §g 199, 200. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 191 Form: Affidavit for Attachment. — Form: Order for Attachment. Section 199. — Form : Affidavit for Attachment against Witness. {Title of Proceeding.) STATE OF NEW YORK, ) County of \^^' of the city of in said county, being duly sworn, says: (1) That he is the petitioner in the above entitled special pro-" ceeding which was instituted for the probate of the will of C. D., de- ceased, propounded by your petitioner (or otherwise state nature of proceeding); and that heretofore a subpoena was duly issued by the Surrogate's Court of said county directed to one X. Y. requiring him personally to appear and attend before our surrogate of county, at a Surrogate's Court to be held in and for said county at the surro- gate's oifice in the city of , N. Y., on the day of 19.., at 10 o'clock in the forenoon of that day, to testify and give evidence in said special proceeding on the part of the petitioner therein; and that, as this deponent is informed and verily believes, said subpoena was thereafter and on the day of , 19.., in said city of , N. Y., duly and personally served upon said X. Y., in the manner required by statute in such case made and pro- vided, as more fully appears by the proof of service thereof hereto annexed. (2) That said X. Y. has failed and neglected to attend said Surro- gate's Court, as required by the terms of said siibpcena, and neither is, nor has been, in attendance at or upon said court; and that he is a necessary and material witness for deponent, the petitioner in said special proceeding, and without the benefit of his testimony deponent cannot safely proceed to the trial thereof, as this deponent is advised by Esq., his counsel, who resides in the city of , N. Y., after fully and fairly stating to him what is expected to be proved by said witness, and as deponent verily believes. (Jurat) (Signature.y Section 200. —Form : Order for Attachment. At a Surrogate's Court, in and for the County of held at the Office of the Surrogate in the City of ., N. Y., the day of 19./. ■ Present, Hon , Surrogate. (fate of Proceeding.) The subpoena heretofore issued in this special proceeding to X; Yi requiring him personally to appear and attend in this court on this the .... day of , 19. ., at 10 o'clock in the forenoon, t6 teStiiCy 193 PART I : GENERAL PROCEDURE. Ch. 9, § 201. Form: Attachment. and give evidence on behalf of the petitioner in this special proceeding, having been duly and personally served on said X. Y. in the city of , N. Y., on the day of 19.., and his full legal fees as a witness having been paid to him, as appears by the affidavit of , annexed thereto and duly filed, proving such service and payment to him, and said X. Y. having failed to appear according to the reauirement of said subpcena; and on reading and filing the affidavit of the petitioner herein, verified the ...; day of 19.., and setting forth, among other things, such service and default and that said X. Y. Is a necessary and ma- terial witness for the petitioner who cannot safely proceed to trial in this special proceeding without his testimony, and on motion of , Esq., attorney for said petitioner herein, It is heeebt oedeeed that a warrant issue to the sheriff of the county of to attach said X. Y. and bring him forthwith personally before our Surrogate's Court to answer for his contempt in not obeying the said subpoena. Surrogate. 'A preliminary order for the issuance of a warrant of attach"^ tnent is unnecessai-y, but it was customary in the former pro- cedure and often is made under the present practice. Some- times an order to show cause may be expedient before the at- tachment issues. {See John O'Toole's Estate, 1 Tucker 39*) Section 201. — Form : Attachment. THE PEOPLE OF THE STATE OF NEW YORK To the Sheriff of the county of , Greetin g:— - We command you to attach X. Y., of the city of , N. Y.) and forthwith bring him personally before our Surrogate's Court held in and for the county of at the surrogate's office in the city of , N. Y., to answer unto us for his misconduct and contempt against us in not obeying our writ of subpcena, issued in due form of law by our said surrogate, to him directed and on him duly and f)ersonally served and his legal fees as a witness paid him, commanding him personally to appear and attend before our said Surrogate's Court field in and for said county at the surrogate's office in the city of N. Y., on the day of , 19 . • , at 10 o'clock in the forenoon, to testify and give evidence in a certain special proceediiig, how pending in said court and instituted^ for the probate of the last will and testament of ■" ■ , deceased, {or otherwise aescriie proceeding) ; and have you then and there this writ. Ch. 9, §§ 303, 303. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 193 Habeas Corpus to Testify.— Form :Affidavit for Habeas Corpus to Testify. In testimony whereof, we have caused the official seal of our said Surrogate's Court to be hereto affixed. Witness, Hon surrogate of said county, at the surrogate's office in the city of N. Y., on this the day of , 19 Surrogate. (Or Clerk of Surrogate's Court.) Petitioner's Attorney, No. .... Street, ^..., N. Y. If signed ty cleric there should te also a suhscription or endorsement ty the surrogate, after this- fashion: Allowed this . . . . day of •. . »> 19... Surrogate. Section 202. — Habeas Corpus to Testify. The Surrogate's Court has power, upon application of a party to a special proceeding pending therein, to issue a writ of habeas corpus for the purpose of bringing before the court; a prisoner detained in a jail or prison within the State, to testify as a witness in the proceeding (§ 2008) except where the prisoner is under sentence for a felony. (§ 2011.) The procedure is regulated by sections 2012-2014 of the t!ode; and, as this is a State writ, the general provisions of sections 1991-2007 as to the form of such a writ, its manner of service, fees and the requisite undertaking are applicable. Section 203.— Form : Affidavit for Habeas Corpus to Testify*. (Title of Proceeding) STATE OF NEW YORK, -J County of I ^®- of the city of ". in said county and States being duly sworn, says: (1) That the above entitled special proceeding has been commenced 6y the due service of a citation issued by the surrogate of county upon the petition of deponent for the probate of the last will and testament of , formerly of said city of .... , now deceased, (or otherwise state nature of proceeding) and is now pending in the Surrogate's Court of said county; that ." , one of the parties-respondent in said proceeding, has duly filed his 194 PART I : GENERAL PROCEDURE. Ch. 9, § 304. Form : Habeas Corpus to Testify. answer therein denying the due execution of said will, and alleging that the instrument propounded as such is not the last will and testa- ment of said decedent (or otherwise hriefiy state nature of ansicer) ; and that the issues in said proceeding will be brought on for a hearing before our said Surrogate's Court at the surrogate's office in the city of , N. Y., on the day of 19. ., at 10 o'clock in the forenoon of that day, to which time and place the trial of said proceeding has been duly adjourned. (2) That one X. Y. of the village of , county of .., and State of New York is (a subscribing witness to the said will, and) a necessary and material witness for deponent; and that deponent has fully and fairly stated the case in this proceeding to , Esq., his counsel therein, who resides at No street in said city of and has fully and fairly disclosed to him the facts which deponent expects to prove by said X. Y., and that de- ponent is advised by his said counsel, after such statement, and verily believes that the testimony of said X. Y. is material and necessary to deponent on the hearing of this special proceeding and that with- out his testimony deponent cannot safely go to trial. (3) That said X. Y. is now a prisoner in the custody of the sheriff of county and is detained in the jail of said county at the village of , N. Y.; but that he is not confined under any sen- tence for a felony. {Jurat) (Signature.) Where a person whose testimony is sought is confined in a prison or jail under a sentence for a felony his deposition may be taken under section 877. Section 204.— Form : Habeas Corpus to Testify. THE PEOPLE OF THE STATE OP NEW YORK To the Sheriff of County (or other officer having custody of the prisoner) Greeting: — We command you, that you have the body of X. Y., detained in the jail in your custody as it is said, under safe and secure conduct before our Surrogate's Court of the county of at the surro- gate's office in the city of , N. Y., on the day of 19---, at 10 o'clock in the forenoon of that day, then and there to testify and give evidence in a certain special proceeding pending in our said Surrogate's Court for the probate of the last will and testament of , deceased, commenced by a citation duly issued upon the petition of one (or otherwise describe proceed- ing) ; and immediately after said X. Y. shall have testified in said special proceeding, that you return him to said prison under safe and secure conduct; and that you have then and there this writ. Witness, Hon , surrogate of said county, at the Ch. 9, § 305. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 195 Depositions Taken within the State. surrogate's office In the city of , N. Y., on this the day of 19... Surrogate. (Or Clerk of Surrogate's Court.) Petitioner's Attorney, No Street, N. Y. {There should also be the following endorsement by the surrogate: Allowed this day of , 19... (Signed) Surrogate. This writ of habeas corpus can be served only by an elector .of the State, who must tender to the ofiScer the fees allowed by law for bringing up the prisoner, and also deliver to him an undertaking as required by section 2000. Section 205. — Depositions Taken within the State. The provisions of sections 870-886, concerning depositions taken within the State to be used therein, are, by section 2538, expressly made applicable to " Surrogates' Courts and to the proceedings therein, so far a^they can be applied to the sub- stance and subject-matter of a proceeding, without regard tp its form " except where a contrary intent is expressed in, o,i» plainly implied from the context of, a provision of Chapter 18; and thereby powers have been conferred upon the Surrogate's Court which it did not possess before the Code. These sec- tions relate to the examination of a party or other person be- fore trial, and to the taking of depositions by consent; and the practice under, them in the Surrogate's Court is the same as in other courts of record. However, these general provisions, in their application to the Surrogate's Court, are somewhat modified by sections 2539 iand 2540 especially providing for the testimony of a material witness who is so " aged, sick or in-firm as to be unable to at- tend " before the surrogate to be examined ; and so it has been .held in a probate proceeding that the testimony before trial of ^uch a witness residing in the county can be taken by the sur- rogate under section 2539 only and that the provisions of sec- tions 870-886 are inapplicable to such a case. (Matter, of^ 196 PART I : GENERAL PROCEDURE. Ch. 9, § 206. Testimony of Aged, Sick or Infirm Witness. M'Goslcry, 5 Dem. 256, 10 Civ. Pro. Rep. 178; see Estate of Gee, 33 Supp. 425, 67 St. Rep. 414.) Very likely the occasion seldom or never arises for the ex- amination of a party or other person, before the commence- ment of a special proceeding in the Surrogate's Court, under the provisions of sections 870-886 ; but recourse to them may be had with advantage where a person, whose testimony is desired, is about to depart from the State, or where the deposition of a witness is taken by consent, or where it is sought to examine a party before the hearing. If, however, the proceeding be for the settlement of an account, special provision is made by section 2729 for an examination of the accounting party : The surrogate may. at any time, make an order requiring tlie accounting party to make and file his account, or to attend and he examined under oath touching his receipts and disbursements, or touching any other matter relating to his administration of the estate, or any act done by him under color of his letters, or ' after the decedent's death and before the letters were issued, or touching any personal property, owned or held by the decedent at the time of his death. {See sec. post.) This renders unnecessary any recourse to section 870 for the examination of an accounting party ; and it is improbable that the examination of a party as such will ever be sought in any other proceeding. As a person who is confined in a prison or jail " under a sentence for a felony " cannot be brought before the Surro- gate's Court, by a writ of habeas corpus, to testify (§ 2011), his deposition or examination may be taken at the prison or jail as provided by section 877; but it cannot be taken under section 879 by the stipulation of the parties. Section 206.— Testimony of Aged, Sick or Infirm Witness. Especial provision is made for the examination of a witness, within the county of the surrogate, who is unable, by reason of age, sickness or infirmity to attend before the court. It is as follows : § 2539. Testimony of Aged, Sick, on Infism Witness. — Upon the applica- tion of a party to a special proceeding, and upon proof, by affidavit, to the satisfaction of the surrogate, that the testimony of a witness in his county, Who is so aged, sick, or infirm, as to be unable to attend before him to be examined, is material and necessary to the applicant, the surrogate must, where the special proceeding was instituted to procure the probate or revoca- tion of probate of a will, and, in any other case, may, in his discretion, proceed to the place where the witness is, and there, as in open court, take his examination. Cn. 9, § 307. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 197 Same Subject: Witness in anotlier County. Such a notice of the time and place of taking the examination, as the surro- gate prescribes, must be given, by the party applying therefor, to each other party, except a party who has failed to appear as required by the citation. The surrogate may also, in his discretion, require notice to be given to any other person interested. (1880 ch. 178.) It will be observed that, except in a proceeding for the pro- bate or revocation of probate of a will, it is discretionary with the surrogate whether he shall act under this section; and, also that in every case the materiality and necessity of the evidence sought, as well as the fact that the witness is so aged, sick or infirm as to be unable to attend, must be proven by affidavit to the satisfaction of the surrogate. Even in a probate pro- ceeding, where the surrogate is required to take the ex- amination of an " aged, sick or infirm " witness, wherever the witness may be within his county, the matter is largely in his discretion since it must be shown to his " satisfaction " that the witness " is material and necessary to the applicant " and also, doubtless, that he is so disabled. The clerk of a Surrogate's Court is empowered by section '2510, in certain cases, to " cause the witnesses to the will to be examined before him " ; but there is no provision authorizing Mm to proceed, for the purpose of such examination, to the place where an " aged, sick or infirm " witness may be. Section 207. — Same Subject : Witness in another County. Especial provision also is made by section 2540 for the ex- amination of a witness outside the county when, by reason of age, sickness or infirmity, he is unable to attend before the court : § 2540. Whex SnEEOGATE TO Make Oedee foe Examination or WiI'nesses. —In a case specified in the last section, except that the witness is in another county, where the witness is a sUbscrianri witness to a will, if the surrogate has good reason to believe that the witness cannot attend before him, within a reasonable tiine, to which the hearing may be adjourned, he may make an order, directing that the witness be examined before the surrogate of the county in which he is, specifying a day. on or before which a certified copy of the order must be delivered to the latter surrogate ; and directing notice of the examination to be given to such persons, and in such manner as he thinks proper. A copy of the order, attested by the seal of the Surrogate's Court, must be transmitted, by him, to the surrogate designated in the order, togetlifer with the original will where the testimony relates to the execution of a written will. The latter surrogate must thereupon, on the day specified in the order, ctt on another day to which he may ad.iourn the examination, take the examina- tion of the witness, as if he possessed ori.!»inal jurisdiction of the special proceeding. The examination after it is reduced to writing, and subscribed by the witness or otherwise duly authenticated, together'with a .stsitement of the 198 PART I : GENERAL PROCEDURE. Ch. 9, § 307. Same Subject: Witness in another County. proceedings upon the execution of tlie order, must be certified by the surrogate tailing the examination, attested by the seal of his court, and returned without delay, with the original will, it any, to the surrogate who directed the examination, by whom all those papers must be filed. And in the other cases named in said section two thousand five hundred and thirty-nine he may appoint a referee to take the testimony who shall report the same to the said surrogate. An examination so taken has the same effect as if it was taken befoi^e the latter surrogate. (1881 ch. 535.) It will be observed that under this section the surrogate maij order an examination of a disabled witness to the will to be taken by the surrogate of another county ; but that, under sec- tion 2539, he himself must take the examination of such a wit- ness within his own county. If, however, the testimony of the disabled witness be necessary, it seems that the surrogate must make such an order so as to comply with the requirement of section 2619 that the testimony of a witness to the will who is disabled by reason of age, sickness or infirmity, "where it is required, and he is able to testify, must be taken in the man- ner prescribed by law and produced before the surrogate as part of the proofs " — if the witness be within the State. The testimony of such a subscribing witness may not be required if there be three or more witnesses to the will so that it can be proved without him. Where the order, provided for in section 2540, hafe been made the surrogate designated therein must " take the examination of the witness, as if he possessed orig- inal jurisdiction of the special proceeding." Precisely when a referee may be appointed, as provided in section 2540, is not clear. The italicized words were added by amendment (1881 ch. .535), and obscure the meaning of the section. " The other cases named in section 2539 " — that is : other than the case of a subscribing witness — certainly are eases where the witnesses are within the surrogate's own county; but as section 2540, before the amendment, related - solely to disabled witnesses " in another county " it seems that ^he amendment is to be construed as though it had read : And in the other cases named in said section 2539, except that the witness is in another county, he may appoint a referee to take the testimony who shall report the same to the said surrogate. If this construction of the amendment be correct the surro- gate has no power, under either section 2539 or 2540, to ap- point a referee to take th^ testimony of a witness who is in his Cii. 9, g 207. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 199 Same Subject: Witness in another County. own county; and this view seems to have prevailed thus far where the question has been raised, [flatter of M'Coskry, 5 Dem. 256, 10 Civ. Pro. Rep. 178; iMatter of Gee's Estate, 33 Supp. 425, 24 Civ. Pro. Rep. 241; Matter of Johnson. 27 Misc. 167, 58 Supp. 601.) A surrogate is not authorized by section 2546 to appoint a referee to take " the evidence upon the facts, or upon a specific question of fact " in any probate proceeding except in New York county under certain conditions. Under the former practice (1837 rh. 460, §§ 13 c6 14), par- tially re-enacted in section 2540, the authorized order was one directing the examination of the aged, sick or infirm witness "before the surrogate of the county in which he resides, and specifying some Monday on or before which the said order shall be delivered to the surrogate, directed to take the ex- amination " ; and such surrogate, on the day mentioned in such order, was required to " appoint a time and place for taking such examination, and give notice thereof to any person who may attend such surrogate for the purpose of hearing such examination." A similar practice is provided by section 2540 which empowers the surrogate, before whom the probate pro- ceeding is pending, to '' make an order, directing that the wit- ness be examined before the surrogate of the county in which he is, specifying a day, on or before which a certified copy of the order must be delivered to the latter surrogate." The order cannot fix a day any more than it can fix a place /or the examination; but, by " specifying a day ", it limits the period for its delivery and fixes the time for the beginning of pro- ceedings before the surrogate of the other county, who, on and from that day, controls the matter. If all the parties and the witness are present before him on the day specified in the order, as limiting the time for its delivery to him, he may pro- ceed at once to take the examination ; and he must do so upon that day " or on another day to which he may adjourn the examination." It is the surrogate of the otlirr county who finally fixes both the time and place for the examination, and not the surrogate who makes the order. Tf the order requires any notice to be given it must be of the time and place of the examination ; and such time and place can only be fixed by the surrogate who takes th6 examination. 200 PART I : UE^^EIIAL PROCEDURE. Ch. 9, § 208. Forms : Affidavit and Order for Examination of Witness by Surrogate. Section 208. — Forms : AfBldavit and Order for Examination of Witness by Surrogate. {Title of Proceeding.) STATE OF NEW YORK 1 ^^ County' of j of the city of in said county and State, being duly sworn, says: that he is the petitioner in the above entitled special proceeding, which has been instituted for the prol^ate of the last will and testament of deceased, {or otherwise state nature of proceeding) and is now pending before the Surrogate's Court of county but stands adjourned until the . . . day of 19. ., at 10 o'clock in the forenoon of that day; that one X. Y. is a sub- scribing witness to said will (or otherwise state facts showing his re- lation to the matter), and that his testimony is material and necessary to deponent upon the hearing of this proceeding as he is advised by Esq., his counsel herein, who resides at No street in said city of , to whom he has fully stated what he expects to prove by said witness; and that said X. Y. resides in the of in said county, where he is at the present time, and that he is so aged, being .... years old, (or, is so sick, or, is so infirm: state also facts showing sickness or infirmity) as to be unable to attend before the surrogate to be examined in this matter. (Jurat.) XSignature.) (Title of Proceeding.) It appearing to my satisfaction by the affidavit of , that the testimony of one X. Y. is material and necessary to said , a party to the above entitled special proceeding, upon the trial thereof, and that said X. Y. is so aged (or, sick, or, infirm) as to be unable to attend before me to be examined' in this matter. Now, therefore, upon motion of , Esq., the at- torney for said , appearing therefor, I HEREBY mEECT that the examination of said X. Y. be taken before me at his residence on street in the of (or otherwise specify the place), where he now is, on the .... day of , 19.., at 10 o'clock in the forenoon of that day; and that written notice of the time and place of taking said examination be given to the said (applicant) and , parties respondent in this proceeding, at least two days before the time for taking said examination. Dated at ^. N. Y., the day of 19. .. Surrogate of County. Cu. 9, §§ 209, 310. WITNESSES. DEPOSITIOXS, DISCOVERY ETC. 201 Form: Order for Examination of Witness. — Form: Notice of Examination. Section 209.— Form : Order for Examination of Witness by Surrogate of Another County. [Title of Proceeding.) This special proceeding liaving been instituted in the Surrogate's Court of county for the probate (or, the revocation of the probate) of the last will and testament of deceased, and being now pending before me as surrogate of said county, (ad- journed until the day of 19. ., at 10 o'clock in the fore- noon of that day) and it appearing to my satisfaction by the affidavit of a party to said proceeding, that the testimony of one X. Y., a subscribing witness to said will, is material and necessary to said upon the trial thereof, and that said X. Y. (resides and) now is in the of county of and State of New York, and is so aged (or, sick, or, infirm) as to be unable to attend before me to be examined in this matter, and I having good reason to believe that said X. Y. cannot attend before me (on said day of 19.., or) within a reasonable time, (thereafter) to which the hearing may be adjourned. Now, therefore, on motion of , . . , Esq., attorney for said , applying therefor, I DO HEREBY OEDER AND DIRECT that Said X. Y. be examined before Hon the surrogate of said county of ; and that, on or before the day of 19.., a certified copy of this order must be delivered to said surrogate; and that written notice pt such examination be given by said (.applicant) to , the attorney for , a party re- spondent in this proceeding, at least two days before the time thereof (personally, or by mail, or otherwise, as surrogate requires). And I FURTHER DIRECT that the original will be transmitted to said ^urrogate of .' county with the attested copy of this order, Dated at ., N. Y., the .... day of , 19. .. Surrogate of County. Although not required by the Code, a copy of this order should be served upon such parties as may have appeared in the proceeding and especially upon those, if any, to whom notice of the examination is required to be given. Section 210.— Form : Notice of Examination. (Title of Proceeding.) The surrogate of county, by this order made in the above entitled special proceeding instituted to probate (or to revoke the pro- bate of) the will of , deceased , 19. ., having 303 PART I : GENERAL PROCEDURE. Ch. 9, § 311. Return of Examination Taken by Surrogate of Another County. directed that one X. Y., a subscriKlng witness to such will, be examined before the undersigned surrogate of county and that a certi- fied copy of said order be delivered to me on or before this day, and it appearing that said X. Y. is at his residence, No street in the of N. Y/ but is so sick as to be unable to appear before me to be examined. Now, therefore, I HEKEBT DiBECT that such examination be had on Monday, , 19.., at 10 o'clock in the forenoon, at the residence of said X. Y., No street in the of , N. Y., to which time and place it is hereby adjourned. Dated at N. Y., the day of , 19. .. Surrogate of County. Take i^otice that, pursuant to an order of the surrogate of county, dated , 19.., (of which a copy has heretofore been served upon you) directing that X. Y. be exaniined before Hon. , surrogate of county, and to an order of ad- journment, of which the foregoing is a copy, the said X. Y. will be" examined as a witness in tiais special proceeding before said surrogate of county, on Monday the day of 19.., at 10 o'clock in the forenoon at the residence of X. Y., No street in the of , N. Y. Dated at N. Y.; the day of 19. .. To , Esq., Attorney for , N. Y. Attorney for ;, N. y. Usually, by arrangement between the surrogate and the parties, the witness is examined on the day specified in the order for the examination. Section 2ii Return of Examination Taken by Surrogate of Another County. Where the surrogate of a county, other than the one wherein a probate proceeding is pending, acts pursuant to an order for the examination of a witness he conducts the examination " as if he possessed original jurisdiction of the special proceeding" (§ 2540) ; and the testimony may be taken, under his direc- tion, by the oflficial stenographer of his court. (§ 2541.) Ch. 9, § 213. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 201 Form : Return of Examination. Section 2540 also provides : The examination after it is reduced to writing, and subscribed by the wit- ness or otherwise duly authenticated, together with a statement of the pro- ceedings upon the execution of the order, must be certifled by the surrogate taking the examination, attested by the seal of his court, and returned without delay, with the original Will, if any, to the surrogate who directed the examina- tion, by wliom all those papers must be filed. (See sec. 207 ante.) If for any reason, the examination cannot be subscribed by the witness, it may be " otherwise duly authenticated," that is: the minutes of the testimony, written out at length by the stenographer from his notes, or taken by the surrogate, or under his direction while the witness is testifying, must, before being filed, be authenticated by the signature of the stenog- rapher or of the surrogate to the effect that they are correct. (§ 2542.) It seldom will occur, however, that the examination, after it has been reduced to writing, may not be " subscribed by the witness " ; and this form of authentication, where it can be secured, always should be insisted upon. Section 212,— Form : Return of Examination.' (Title of Proceeding.) Examination of X. Y., a subscribing witness to the will of deceased; taken herein before Hon , surro- gate of ...;.... county, at No street in the of in said county, on the .... day of , 19 . . . (to which time and place such examination had been adjourned by said surrogate.) Appearances : , Esq. , Attorney for , ; ' and ..-..;;, Attorney for The said X. Y., being first duly sworn by said surrogate, (was there- upon examined by Esq. attorney for , the petitioner, and) testified as follows: (Insert testimony.) (And being cross-examined by , Esq., attorney for , respondent, he further testified as follows: (Insert testinbony.) Taken, subscribed and sworn to before , me this day of , 19. . , / '(Signed) X. Y. Surrogate of County. (If testimony, for any reason, is not subscribed by the toitness, it must be authenticated as provided in section 2542.) 204 PART I : GENERAL PROCEDURE. Ch. 9, § 213. Form : Affidavit for Examination of Witness before Referee. County of > ^ Surrogate's Court, ) I, surrogate of the county of , do hereby CERTIFY, that, pursuant to an order of the surrogate of county, (of which a certified copy, delivered to me 19.., is hereto annexed), directing that one X. Y., he examined before me, I attended on the day designated in said order and adjourned such examination until Monday 19. ., at 10 o'clock in the forenoon, at the resi- dence of said X. Y., No street in the of , N. Y.; and that then and there I took the examination of said X. Y. with , Esq., appearing as attorney for and Esq., appearing as attorney for ; and I FURTHER CERTIFY that I have caused such examination of said x; Y. to be reduced to writing, and that the same was thereupon sub- scribed and sworn to by said witness in my presence (or state other authentication as provided iy section 2542) and is hereto annexed and returned herewith (together with the original will of , deceased, transmitted to me with the order for such examination.) In witness whereof, I have hereunto set my hand, and have aiflxed the seal of our Surrogate's Court of County, on the 1 day of , 19. . t. S. , Surrogate. Sectioil 213 Form : Affidavit for Examination of Witness before Referee. {Title of Proceeding.) STATE OF NEW YORK, l County of j ^^- of the city of , in said county and State, being duly sworn, says: that he is the petitioner in the above entitled special proceeding, which has been instituted to revoke the probate of the last will and testament of deceased (or otherwise state nature of proceeding) and is now pending" before the surrogate of county (but stands adjourned until the .... day of , 19.., at 10 o'clock in the forenoon of that day), and that deponent claims, and has so alleged in his petition herein, that said will was not duly executed as required by the statute, and that it was procured by fraud and undue influence; that one X. Y. was well acquainted with said decedent in his lifetime, and was present at the time of the alleged execution of said will, although not a subscribing witness thereto, and well knows all the facts and circumstances connected with such trans- action (or otherwise state facts showing his relation to the matter) ; and that his testimony is material and necessary to deponent upon the hearing 6t this proceeding, as he is advised by i Esq;, Cn. 9, §§ 314, 215. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 205 Form : Order for Examinatiou of Witness — Deposition by Consent of Parties. his counsel herein, who resides at No street in said city of , N. Y., to whom he has fully stated what he expects to prove by said witness; and that said X. Y. resides in the of , county of , N. Y., where he is at the present time, and that he is so aged, being .... years old, {or, is so sick, or, is so infirm: state also facts showing sickness or infirmity) as to be unable to attend before the surrogate to be examined in this matter; and that deponent is desirous that some suitable person be appointed as referee to take the testimony of said X. Y. and report the same to the surrogate. (Jurat.) (Signature.) Section 214.— Form: Order for Examination of Witness before Referee. (Title of Proceeding.) It appearing to my satisfaction by the alBdavit of , , that the testimony of one X. Y. is material and necessary to said , a party to the above entitled special proceeding, upon the trial thereof; but that said X. Y. is so aged (or, Sick, or, infirm) as to be unable to attend before me to be examined in this matter and is within the county of , N. Y., where he resides, . Now, therefore, upon motion of Esq., the at- torney for said , applying therefor, and after hearing Esq., attorney for a respondent herein, in opposition thereto, I HEREBY OBDEB that the testimohy of said X. Y. be taken by Esq., who is hereby appointed as referee for that pur- pose, at the residence of said X. Y., on street in the of , N. Y., Where he now is, on the .... day of , 19. ., at 10 o'clock in the forenoon of that day, or at an adjourned time ^nd place to be fixed by said 1-eferee; and that said referee report such examination to me with all convenient speed. And I ALSO direct that .... days' notice in writing, of the time and place for the examination of such witness, be given to each party who has appeared in this proceeding. (State manner of service.) Dated at ^ ., N. Y., the day of , 19. .. Surrogate of Countyi Section 215. — Deposition by Consent of Parties; Section 879 applies to the Surrogate's Court (§ 2538) : § 879. Parties May Stipul.4te that Deposition be Takkn'. — The parties to an action may stipulate in writins that tlic deposition of .i competent wit- ness, to bo used therein, may be taken before a judge or referee, at a time and place specified in tlie stipulation, either orally or upon iuterrogatories to bs agreed upon in like manner; 306 PART I : GENERAL PROCEDURE. Cu. 9, §§ 316, 217. Form : Stipulation to Talce Deposition — Depositions Talien Outside the State. The witness may be subpoenaed to attend the examination as upon a trial. and the judge or referee may take his deposition, as if an order had been made by the court directing it to be so talien. But this section does not apply to a case specified in section eight hundred and seventy-seven of this act. (1882 ch. 397.) The referee upon taking such examination must insert therein every answer or declaration of the witness, which either party requires to be inserted; and the deposition, when completed, must be carefully read to and subscribed by the person examined; must be certified by the referee taking it, and, within ten days thereafter, must be filed in the surro. gate's oflSce, together with the stipulation under which it was taken. If, upon such examination, the person examined refuses to answer any question, the referee must report the fact to the surrogate, who must determine whether the question is relevant, and whether the witness is bound to answer it. f§§ 880 d 2538.) A deposition so taken, or a certified copy of it, may be read in evidence by either party, upon the trial of the special proceeding specified in the stipulation. (§§ 881 d 2538.) Section 216. — Forrtl : Stipulation to take i>eposition. (Title of Proceeding.) It is hereby stipulated, pursuant to the provisions of section 879 of tee Code of Civil Procedure, by and between the parties to the above entitled spSeiai proceeding, that the deposition of X. Y., residing in the ....;... of .., county of .....:.;, N. Y., as a witJaess in th§ said proceeding and to be used theirein, may be talien before .'.-....;. ., Esq., as refere^; at his BfBce (O)-, at the residence of said X. Y.) on th^ .... day of 19. ., al 10 o'clock in the forenoon, orally^ (Or, ujlon the interrogatories hereto annexed.) Dated at N. Y., the ; ; ; . day of , 19. .. Attorney for Petitioner. Attorney for Respondent. Section 217.— Depdsitidii taken Outside the StW^. The provisions of ^^ctibiis 887-91.3, concerning depositions taken without the State to be used tlierein, are, by section 253S, Expressly inade applicable tb " Surrogates' Courts and to the procefedings therein, so far as they can be applied to the sub- Ch. 9, § 318. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 207 Commissioa with Interrogatories. stance and subject-matter of a proceeding, without regard to its form " except where a contrary intent is expressed in, or plainly implied from the context of, a provision of Chap- ter 18. {Matter of Plumb, 64 Hun 317, aff'd, 135 ^V. Y. 661.) Moreover, section 888 {as amended, 1894 ch. 308) now author- izes such depositions to be taken " in special proceedings " ; and, as we already have seen, the whole of chapter 9 of the Code, entitled " Evidence," applies to the Surrogate's Court ex- cept only such provisions thereof as are manifestly unsuitable. The power to take depositions without the State for use within the State was given the Surrogate's Court prior to the Code, which has continued it with important additions and modifications. Under the present law a commission may be issued by a Surrogate's Court, either with or without written interrogatories, or to take the deposition of a witness partly upon written interrogatories and partly by oral questions; and, in a proper case, the interrogatories may be in a foreign language. So, too, letters rogatory now may be issued by a Surrogate's Court. And it has been held that the Surrogate's Court has power to issue a commission to take the testimony of non-resideat witnesses, for use before an appraiser appointed in a proceeding to fix a transfer tax Upon the estate of a de- ceased non-i*esident, if it appears that the property, which is alleged to be Subject to the tax, is within the jurisdiction of the court. {Matter 0/ Wallace, 71 App. DiD. 284, 75 Supp. 838.) When proceeding in the Surrogate's Court, under these sec- tions, the general practice prevailing in other courts of record is to be followed so far as practicable. Section 218. — Commission with Interrogatories." In any special proceeding pending in the Surrogate's Court Where it appears by affldavit, on the application of either party, that the testimoiiy of one or more witnessesj Hot within the State, is nlaterial to the applicant, tL comrnission may be issued to one or more competent persons named therein, au^ thorizing them, or any of them, to examine the witness or wit- nesses named therein, under oath, upon the interrogatories 308 PART I : GENERAL PROCEDURE. Ch. 9, § 218. Commission with Interrogatories. aonexed to the commission ; to take and cei'tify the deposition of each witness, and to return the same, and the commission, according to the directions given in or with the commission, The applicant or other party to the proceeding thus may be examined. (§ 887.) The application is made to the Surro-^ gate's Court and is required to be granted, upon satisfactory proof of the facts authorizing it, unless the court has reason to believe that the application is not made in good faith {Oakes v. Biter, 118 App, Div. 772, 103 Supp. 849), or unless an order for an open commission, or for taking depositions, is made. Notice of the application must be given to the adverse party, unless he be in default for want of an appearance; and, upon granting the order, the surrogate may in any case impose such other terms as justice requires. (§ 889.) The affidavit may be made by the attorney for the applicant {Hart V. Ogdensburg & L. Champlain R. B. Co., 67 Hun 556, 22 Supp. 401, 51 St. Bep. 468) ; but he must set forth the reason why it is not made by the party. {Pax v. Peacock, 97 App. Div. 500, 90 Supp. 137.) Where the affidavit is made by an attorney who states that the sources of his information and the grounds of his belief are interviews and correspondence which he has had with various designated persons, it has been held to be sufflcient. {Laidlaw v. Stimson, 67 App. Div. 545, 74 Supp. 684.) The name of the witness must be set forth in the moving papers {Lazarus v. Schroder, 49 App. Div. 393, 63 Supp. 359), and also in the commission itself {Hemenway v. Enudson, 73 Hun 227, 25 Supp. 1018, 57 St. Bep. 127) ; and the afSdavit should show that the witness is not within the State {Matter of Adams, Zl App. Div. 298, 52 Supp. 617), and also set forth the place where he is outside the State {Brown v. Bussell, 58 App. Div. 218, 68 Supp. 755), although it need not name the exact place of his residence {Dambmann v. Metro- politan St. Bailway Co., 110 App. Div. 165, 97 Supp. 91), but a mere statement that the proposed witness is a non-resident is not a sufficient allegation that he is absent from the State. {Wallace v. Blake, 4 Supp. 438, 22 St. Bep. 425; Apollinaris Co. V. Venalle, 10 Supp. 469, 32 St. Bep. 210.) A commission will be granted to examine a witness, who is absent from the State and whose evidence is shown to be ma- Cii. 9, § 219. WITNESSES, DEPOSITIOXS, DISCOVERY, ETC. 209 Commissioii to Examine upon Oral Questions. terial, where the application is made in good faith by one who contests the probate of a will (Matter of Seabra, 18 WJchj. Dig, 428) ; but it is not necessary that the nature of the testimony to be given by such a witness should be stated, so as to enable the surrogate to see that it is material (Cadmus v. Oakley, % Dem, 298), unless its materiality be denied. (Henry v. Henry, 4 Dem. 253.) And it is provided in section 2620: Where a subscribing witness is absent from the State, upon application of either party, the surrogate shall cause tbe testimony of such witness to be taken by commission, when it is made to appear that by due diligence sucli testimony may be obtained. (See sec. 437 post.) Section 219. — Commission to Examine upon Oral Questions. Where an issue of fact has been joined in a Surrogate's Court, the parties may stipulate in icriting that a commission issue without written interrogatories and that the depositions be taken upon oral questions, or that a commission issue to take the deposition of one or more designated witnesses par^y upon oral questions and partly upon written interrogatories, or to take the deposition of one or more designated witnesses upon oral questions, and of ouq or more designated witnesses upon written interrogatories; or, the surrogate to whom an appli- cation for a commission is made, may, in his discretion, direct in the order, that such a commission issue. (§ 893 ; see Blatter of Anderson, 84 App. Div. 268, 82 Supp. 683.) Such a commis- sion, however, " will not be granted except under peculiar cir- cumstances, and then only when the facts stated show the necessity for resorting to that course of practice" (Stewart v. Russell, 66 App. Div. 542, 73 Suj^p. 249; Depue v. Depue, 115 App. Div. 466, 101 Supp. 412) , and it cannot be issued where the adverse party is either an infant or the committee of a per- son judicially declared to be incapable of managing his affairs; nor can the applicant be examined in his own behalf under such a commission except by consent of the parties. (§ 895; Ordway v. Radigan, 114 App. Div. 538, 100 Supp. 121; Stuart V. Spofford, 122 App. Div. 47, 106 Supp. 903.) In this connection it should be noted that there is a marked distinction between commissions to examine designated wit- nesses on oral questions, and open commissions in which no witnesses are named; but the courts do not always discrim- 310 PART I : GENERAL PROCEDURE. Ch. 9, § 220. Open Commission. inate between them. (E. g. Matter of Anderson, 84 App. Div, 268, 82 8upp. 683.) While the open, commission is regarded with disfavor yet " in many cases the ends of justice will be subserved by a liberal exercise of t|ie authority to issue com^ missions to take the testimony of designated witnesses on oral questions." {Deery v. Byrne, 120 App. Div. 6, 104 Supp, 836.) In a will contest, where a question arises as to undue influ- ence, a commission for an oral examination of witnesses may be issued; but it has been held that an order therefor should not be granted until a specific statement of the grounds of the contest has been filed so as to afford reasonable protection to the proponent in his preparation for the cross-examination of the witnesses, and that the order granting the commission must specify those grounds and limit the examination to the specifications. {Matter of Kendall, 2 N. Y, Law Bull. 51.), Section 220. — Open Commission. In like manner, where an issue of fact has been joined in a special proceeding, the Surrogate's Court may in its discretion upon the application of either party and upon Satisfactory proof, by affldavit, that one or more witnesses not within the State are material and necessary in the prosecution or defense of the proceeding, make an order, upon such terms as it deems proper, directing that an open commission issue or that deposi- tions be taken ; and such a commission may be issued also upon the written stipulation of the parties. (§ 894.) But it cannot be issued where the adverse party is either an infant or an adjudged incompetent person; nor can the applicant be ex- amined thereunder in his own behalf except by consent of the parties. (§ 895.) An open commission permits the oral examination of un- named witnesses in another State, and, as its practical effect is to change the place of trial and impose greater expense upon the other parties, it will not be granted except for strong and convincing reasons (see Matter of Anderson, 84 App. Div. 268, 82 Supp. 683) ; and the order authorizing it involves a sub- stantial right. {Jemison v. Citizens' Sav. Bank of Jefferson, 85 JV. Y. 546.) Such a commission is not favored and seldom is granted (Einstein v. General Electric Co., 9 App. Div. 570, 41 Cii. 9, § 331. WITNESSES, DEPOSITIOXS, DISCOVERY, ETC. 311 Letters Rogatory. Swpp. 808), and will not be allowed whei-e the moving papers show the exact facts sought to be proved by the witnesses ; for, in such case, there can be no difficulty in framing interr rogatories to elicit the facts. (Predigested Food Co. v. Scott, 28 App. Div. 59, 50 Supp. 896.) § 897, Open Commission.^ — An open commission must be directed to one or more persons, named therein, and must auttiorize them, or any one of them, to examine any witness who may be produced by either party, on or before a day specified therein, upon oral questions to be put to the witness, when he is produced ; to take and certify the deposition of each witness so examined ; and to return the same, and the commission, immediately after the expiration of the time limited for the production of witnesses, according to the directions, given in or with the commission. (1876 cli. 448.) Section 221.— Letters Rogatory. Letters rogatory are a commission to a foreign court whereby it is informed of the pendency of an action or proceed- ing in our court and the name of the foreign witness ; and it is requested to cause his deposition to be taken in due course of law, for the furtherance of justice, accompanied with an offer, on the part of the tribunal making the request, to do the like for the other, in a similar case. The writ or commission is accompanied by interrogatories, filed by the parties on each side, to which the answers of the witness are desired. The commission is executed by the judge, who receives it, either by calling the witness before himself, or by the intervention of a commissioner for that purpose ; and the original answers, duly signed and sworn to by the witness, and properly authenti- cated, are returned with the commission to the court from which it issued. Practically the only difference between letters rogatory and the ordinary commission, is, that it is directed to a judicial tribunal or officer of the foreign country, with a request to summon the witness and take the testimony, in- stead of appointing a commissioner to take it; and whether the circumstances of a case are such as to require the exercise of this power, is for the court of original jurisdiction to deter- mine. {Anonymous, 59 N. Y. 313; Matter of Petition, 5 Sandf. 674.) Letters rogatory may be issued out of the Surrogate's Court, in any case where a commission may be issued, " upon satis- factory proof, by affidavit, that there is good reason to believe, that the ends of justice will be better promoted thereby, than 313 PART I : GENERAL PROCEDURE. Ch. 9, § 333. Commissions Generally : Procedure. by the issuing of a commission; notwithstanding that a com= mission can be executed, in the country to which such letters " are to be sent ; but they " can be issued only to examine one or more witnesses, upon written interrogatories, annexec} thereto ; which must be framed and settled, and the depositions returned " in tlie same manner as in case of " interrffgatories annexed to a commission, and the depositions taken tjiere- under." (§§ 913 eg 2538.) It will be observed that the Code makes provision as to ttie manner in which the interrogatories shall be settled and the deposition returned, but not as to the manner of executing the letters rogatory or of taking the deposition. This omission cannot be regarded as an oversight when we consider the nature of these letters; for we may not prescribe conditions for the performance of a request based upon the comity of nations nor dictate the methods to be pursued by the court whose assistance we invoke. The rules and practice of the for- eign court must be the law of procedui'e in such cases. It is not a valid objection to a deposition taken in a foreign country, pursuant to letters rogatory, that, although the in- terrogatories were settled in the English language, they, and the answers thereto, appear in the deposition in the foreign language. {Union Square Bank v. Reichmann, 9 AfP- Div. 596, it Supp. 602.) Section 222.— Commissions Generally : Procedure, The procedure relative to the issuance, execution and re- turn of a commission issued out of the' Surrogate's Court is practically the same as in the Supreme Court. " Notice of ap- plication for the commission must be given to the adverse party, unless he is in default for want of an appearance " ; and upon granting the order, the surrogate may impose such terms as justice requires. (§ 889.) The order for the commission must be entered in the surrogate's office (§ 890) ; and, if issued under section 887, the commission must name the per- son to whom it is directed or it may be vacated. (Spurr & Sons Inc. v. Empire State Surety Co., Ill App. Div. 816, 102 Supp. 1065.) Where interrogatories are to be annexed to the commission, Ch. 9, § 323. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 313 Same Subject ; Depositions. " unless settled by the consent of the parties, they must be set. tied, upon notice," by the surrogate as prescribed iri the Gen- eral Rules of Practice (§ 891; see rule 20) ; and, when settled, they must be annexed to the commission. Either party must be allowed to insert therein, any question pertinent to the issue, which he proposes. (See Irving v. Royal Exchange As- surance, 122 App, liiv. 56, 107 Swpf. 83.) Unless the parties stipulate in writing, or the order granting the commission prescribes, how the commission shall be returned, the surro- gate must indorse upon it the proper direction for that pur- pose; and unless the surrogate thinks proper to direct it to be returned by an agent, it must be returned through the post- . office. (§ 892.) A commission may issue, or an order to take depositions may, be made, by consent, in a case where either may be directed by the surrogate. On filing a stipulation to that effect, signed by the attorneys for the parties, an order accordingly must be entered ; " and thereupon the attorney for the party, procuring the order, may insert in the commission, or indorse upon or annex to it, or the- order, the necessary directions for the execution and return thereof, according to the stipulation." (§ 908.) § 896. Notice of Examination Upon Ghal Questions. — Where a commission is issued, to talse testimony without written interrogatories, as prescribed In section 893 or section 894 of this act, notice of the time and place of the examination of a witness, hy virtue thereof, naming the witness, must be served as prescribed in section 899 of this act. (1876 ch. 448.) By an irrelevant amendment to section 2620, entitled " Proof of handwriting ", it is now provided therein that Where in any matter before the surrogate or in a Surrogate's Court the testi- mony of any witness shall be taken by or on commission, the same, together with the commission on which it is taken, shall he duly filed in the office of the surrogate but need not be recorded. {See sec. 437 post) Section 223. — Same Subject : Depositions. An order, directing that depositions be taken, must specify the time within which they must be taken, and the manner in which they must be returned. The order must be entered in the surrogate's office; and a certified copy thereof must be annexed to each deposition, or set of depositions, returned as prescribed by the statute. (§ 898.) Thereupon the deposi- tion may be taken as provided in the following section : 214 PART I ; GENERAL PROCEDURE. Ch. 9, §§ 324, 225 Same Subject : Deposition, — Execution and Return of Commission or Order. § 899. Befoee Wi-ioji Depositions May be Taken ; Notice of Taking. — A deposition may be talien, pursuant to sudl an order, before a person mutually agreed upon by the parties, or a chancellor, or a judge of a court of record, or the mayor or other chief magistrate of a city, or a justice of the peace of the state or territory, where the witness is ; who is not counsel or attorney for either party, and would not be disgualifled, by reason of afflnity or consanguin- ity to a party, or interest iu the event, from serving as a juror upon the trial of the action, within the State. Written notice of the time and place of taking a deposition, specifying the name of the witness, and the person before whom it will be taken, must be served by the party, at whose instance it is taken, upon the attorney for the adverse party. The time for serving such a notice must be, at least, Ave judicial days before the deposition is taken ; and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party, and the place where the deposition is to be taken. (1876 ch. 448.) Section 224. — Same Subject : Deposition, how Taken. § 900. How Deposition.s Taken, — Upon the examination of a witness, with- out written interrogatories, by virtue of a commission, or of an order to take depositions, the commissioner, or the person before whom the deposition is taken, must take down, or cause to be taken down, as prescribed iu the ne.tt section, the substance of the witness's testimony ; unless he is directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word. Unless the commission or orScr otherwise directs, the person, appearing for either party, may ask any question, which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved, without being specified at the time of examination. A copy of this section must be annexed to each commission to take testimony without written interrogatories, and to each certified copy of an order to take a deposition. (1876 ch. 448.) Section 225.— Same Subject : Execution and Return of Commission or Order to take Depositions. § 901. Commission oe Oedee to Take Depositions ; How Executed and Retuened. — The person, to whom a commission is directed, or before whom a deposition is taken, unless otherwise expressly directed in the commission, or in the order for taking the depositions, must execute the commission, or the order, as follows 1 1. He must publicl.y administer, to each witness examined, an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respecting which the witness is to be examined. 2. He must reduce the examination of each witness to writing, or cause it to be reduced to writing, by a disinterested person. After it has been carefully road, to or by the witness, it must be subscribed by the witness. 3. If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it. a copy thereof, must be annexed to the deposition to which it relates, subscribed by the witness proving it, and numbered or otherwise identified, in writing thereupon, by the commissioner, or person taking the deposition, who must subscribe his name thereto. 4. The commissioner, or person taking the deposition, must subscribe his name to each half sheet of the deposition ; he must annex all the depositions and exhibits to the commission, or to a certified coj)y of the order for taking the deposition, with the certificate specified in the next section; and he must close them up under his seal," and address the packet to the clerk of the court, at his official residence. .'5. It there is a direction, on the commission, or in the order, to return the same through the post-offlce, he must immediately deposit the packet, so ' addressed, in the post-offlce, and pay the postage thereon. Ch. 9, § 336. "WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 315 Same Subject : Certificate of Execution. 6. If there is a direction, on tlie commission, or in tine order, to return the same by an agent of the party, at whose instance it was issued or granted, the packet so addressed must he delivered to the agent. 7. Where a commission is directed to two or more persons, one or more of Miem may execute it. as prescribe^ in this and tti*^ next section. A copy of this and of the next section must be annexed to each commission, •r order to talse depositions, autliofized by this article. (1876 ch. 448.) ^ A copy of any exhibit, concerning which the witness is to be examined, may be annexed to the interrogatories and the original may be produced upon the examination and identified by the witness ; for, " a party is never called upon to risk the loss of valuable original papers by annexing them to a com- mission to be transmitted to a distant State or country for execution." [Commercial Bank of Perm. v. Union Bapjc of N. Y.,11 N. Y. 203.) § 904. RETHiiN BY Agent. — If the paclset, specified in section 901 of this act, is delivered to an agent, he must deliver it to the clerk, to whom it is addressed, or to a judge of the court (surrogate), either of whom must receive and open if, upon the agent making affidavit, that he received it from the hands of the commissioner, or the person who took the deposition, and that it has not been opened or altered, since he so received it. (1876 eft. 448. > § 905. Ip Agent is Sick on Dead. — If the agent is dead, or, from, sickness or other- casualty, is unable to deliver the packet personally, as prescribed in the last- section, it must be received, by the clerk or judge (.surrogate), from the hands of any other person, upon the latter making an a£Bdavit, that he received it from the agent; that the agent is dead, or otherwise unable to deliver it; that it has not been opened or altered since he received it and that he believes that it has not been opened or altered, since it came from the hands of the eommissioner, or the person who took the deposition. (1876 -eft. 448.) § 906. -Filing Deposition, etc., so Retijened. — The clerk or judge (surro- gate), who receives and opens the packet, as prescribed in the , last two sections, must indorse thereupon, and sign, a note of the time of the- -receipt and open- ing thereof, and immediately file it in -the office of the clerk, together with the affidavit of the person, who delivered it to him, (1876 eft. 448.) § 907. The Same. — If the packet is transmitted through the post-offlce, the cleirk, to whom it is addressed, must- receive it from the post-office, open it, indorse thereupon, and sign, a lilie note of the time of the receipt and opening thereof, and immediately file it in his office. (1870 eft. 448.) Section 226.— Same Subject : Certificate of Execution. S 902. CEETiFic.iTE OF EXECUTION. — The commissioner or other person, before whom one or more depositions are taken, must subscribe, and annex to each deposition, a certificate, substantially in the following form, the blanks being properly filled up : I' "State" for "territory") "of "County" (or "parish") "of " j ''' "I do certify that , the witness, personally appeared before me on the , , . , day of .... at .... o'clock in the , . , . noon, 19. ., at the in tlie State " (or " territory ") "of and after being sworn" (or "affirmed." as the case may be), "to testify the truth, the whole truth, and nothing but the truth, did depose to the matters contained in the foregoing deposition, and did, in my presence, subscribe the same, and indorse 216 PART I ; GENERAL PROCEDURE. Ch. 9, § 327. Same Subject : Procedure after Return. the exhibits anne.iied thereto. And I further certily that I have subscribed my name to each half-sheet thereof, and to each exhibit. And I further certify that appeared in behalf of the , and that appeared in behalf of the " (1876 ch. 448.) A copy of this section must be annexed to each commission, or order to tal?e depositions (§ 901) ; and the certificate specified therein is a sufficient return to a commission. (§ 903.) Section 227. — Same Subject : Procedure after Return. The " commission, or copy of an order to take depositions,, with the certificates, returns, depositions, and exhibits thereto annexed, must remain on file in the office " of the surrogate, " unless otherwise provided by the stipulation of the parties " ; and " they are always open to the inspection of the parties, either of whom is entitled to a copy of them, or of any part thereof, on the payment of the fees allowed by law." (§ 909.) § 010. When Deposition May be Suppressed. — Where it apjpcats,- by affi- davit, that a deposition has been improperly or irregularly taken or returned ; or that the personal attendance of the witness, upon the trial, could have been procured, with due diligence, by a subpcena ; or that the attorney for either party has practiced any fraud, or unfair or overreaching conduct, to the prejudice of the adverse party, in the course of the proceedings ; an order, for the suppression of the deposition, may he made by the courli upon the appli- cation of the party aggrieved, upon notice to the adverse party. (1870 ch. 448.) It seems proper for the court to allow a deposition which is defective in some matter of form — as where the requisite cer- tificate is not attached or the commissioner has failed, to sub- scribe his name to each sheet — to be returned for amendment (Risley v. Earlow, 48 Misc. Ill, 96 Supp. 728) ; and where there has been an imperfect execution of a commission, which could have been corrected either by orderiiig a re-execution thereof or by quashing the return, no objections to the deposi- tion will be heard on the trial save those addressed to the com- petency of the witness or the admissibility of evidence. {Wright v. Cabot, 89 2V". Y. 570.) The power of the court to suppress a commission seems to be limited t6 the three defects or irregularities specified in section 910; but it has been held that a refusal of the witness to answer proper and material questions on cross-examination also will authorize the court to suppress his deposition. {Gal- houn V. Commonwealth Trust Co., 124 App. Div. 633, 109 Ch. 9, § 238. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 217 Interrogatories and Depo.9ition in Foreign Language. Supp. 77.) All objections to the admissibility of evidence, or to the competency or propriety of the interrogatories, must be taken on the trial when the deposition is offered in evi- dence. {Wananialcer v. Megraw, 168 W. Y. 125.) Where testi- mony taken upon the direct examination of a witness, under a commission, has been read upon the trial, a party may decline to read the testimony taken upon his cross-examina- tion of the witness; and, if this be read by his adversary, he may object to any question as incompetent or irrelevant al- though the interrogatory was made by him and constituted part of his own cross-examination. {Cudlip v. N. Y. Evening Journal Piib. Co., 180 IV* Y. 85.) Testimony taken upon a commission is not to be rejected because not responsive to the interrogatory if otherwise it be competent. {Fassin v. Htit- hard, 55 Isf. Y. 465.) § 911. Deposition, etc.j Evidence.- — lA deposition, taken and returiied as prescribed in this article, or an exemplified copy thereof, if the original is filed In another county, may, unless it is suppressed as prescribed in the last section, be read in evide&ce by either party. It has the same effect, and no other, as the oral testimony of the witness would have ; and an objection to the competency or credibility of the witness, or to the relevancy, or substantial competency, of a question put to him, or of an answer given by him, may be made, as if the witness was then personally examined, and without being noted upon the deposition. (1876 ch. 448.) Section 228. — Interrogatories and Deposition in Foreign Language. Upon an application, made for a commissioil to be issued to a foreign country, if it satisfactorily appears, by affidavit, that the witness does not understand the English language, the order for the commission may, in the discretion of the sur- rogate, " direct that written interrogatories annexed thereto, by way of direct or cross-examination, be framed in the Eng- lish language, and also in a foreign language; that only the interrogatories framed in the foreign language be put to the witness; and that his answers be taken, and the Certificates be made out, in the same language. Where such an order is made, it must provide for the payment, by the applicant, to the adverse party, of a reasonable sum, fixed therein, for the expense of procuring the interrogatories, in his behalf, to be translated." The surrogate, " who settles the interrogatoriesy 318 PART I : GENERAL PROCEDURE. Ch. 9, § 339. Form : Affidavit for Commission. must settle them in the foreign language, and in the English language; and, for that purpose, he may call in the assistance of one or more experts, whose compensation must be fixed by the surrogate, and paid by the applicant. When the deposi- tion is lead in evidence, it, and the interrogatories, must be interpreted into the English language, as if the witness, being unable to speak the English language, was personally present and testifying." (§ 912; See Roth v. Mautner, 115 App. Div, 148, 100 S^ipp. 707.) Section 229. — Form : Affidavit for Commission. {Title of Proceeding.) STATE OF NEW YORK, ] County of j ^^- of the city of , in said county and State, being duly sworn, says: That he is the petitioner (or, a party respondent) in the above en- titled special proceeding, whiph has been instituted, and is now pending, in the Surrogate's Court of county for the probate of the last will and testament of , late of said city of deceased, and that objections to such probate have been duly filed by ^ , one of the heirs and next of kin of said decedent, (or otherwise state nature of proceeding and issue) who h£is appeared herein by Esq., his attorney; and That one X. Y. is a subscribing witness to said will, (or, was well acquainted with the decedent in his lifetime, and was present at the execution of said will, although not a subscribing witness thereto; or, otherwise state facts showing testimony to 6e material) and that he is not within the State of New York, but, as deponent is informed and verily believes, is now in the city of , State of , where he resides at No street, and that the testimony of said X. Y. is material to deponent; that deponent has fully and fairly stated the case in this proceeding to , Esq., his counsel herein, who resides at No street in said city of N. Y., and has fully and fairly disclosed to him the facts which de- ponent expects to prove by said X. Y., and that deponent is advised by his said counsel, after such statement, and verily believes, that the testimony of said X. Y. is material to deponent, and that he is a neces- sary and material witness for deponent, in this special proceeding' (in support of said will;) and Deponent further says that it is necessary, in order to protect his rights upon the trial of the issues in this special proceeding, that, a commission be issued to one or more competent persons named therein Foy-\A^K>' -Fe n Ch. 9. § 330. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 319 Notice of Application for Commission. authorizing them, or any of them, to examine the said X. Y., under oath, according to the statute in such case made and provided. {If any examination on oral questions under section 893, be desired, add:) Deponent further says that none of the parties to this proceeding is an infant, or the committee of a person judicially declared to be in- capable of managing his affairs, by reason of lunacy, idiocy, or habitual drunkenness. (See § 895.) (Jurat.) (Signature.), crriMj / Section 230.— rNotice of Application for Commission. (Title of Proceeding.) Take notice, that, upon an affidavit of which the annexed is a copy, and upon all the proceedings in this matter, a motion will be made herein before the surrogate of county, at his office in the city of , on the .... day of , 19. ., at 10 o'clock In the forenoon of that day, or as soon thereafter as counsel can be heard, for an order that a commission issue in this proceeding to be directed to Esq., of the city of State of , counsellor-at- law, or to some other competent person or persons, authorizing him, or them, to take the examination on oath, of X. Y., of the same place, as a withess in this proceeding, on behalf of the petitioner (or, of , , a respondent) herein, (in support of the will pro- pounded in this proceeding) (*) on interrogatories to be annexed to said commission. (Or, after (*): partly upon oral questions and partly on written interrogatories. Dated at N. Y., the day of 19... Yours, etc., Attorney for Petitioner, (or, for ij. i Respondent) c. ,N. Y. Attorney for Contestant, .... Esq., r — - ' II Section 889 provides : " Notice of the application must be given to the adverse party, unless he is in default for want of an appearance " ; and such notice should be given to each party who has appeared, even though not pleading. 220 PART I ; GENERAL PROCEDURE. Ch. 9, § 231. ' Form : Order for Commission. Section 231. — Form : Order for Commission. At a Surrogate's Court, in and for the County of , held at the Surrogate's Office in the city of New Yorli, on the .... day of 19... Present, Hon ., Surrogate. (Title of Proceeding.) On reading and filing the affidavit of the petitioner (or, a contestant, or, a respondent) herein, verified 19.., whereby, among other things, it appears to our satisfaction that one X. Y. is not within the State of New York, but now is in the city of and State of where he resides at No street in said city, and that his testimony is material to said in this special proceeding (in support of the will propounded herein), and on proof of the due service of notice of this motion upon all parties who have appeared in this proceeding (and on reading and filing — specify opposing papers if any) and on motion of , Esq., attorney for said after hearing , Esq., counsel for , a contestant (or, petitioner or, respondent) herein, in opposition thereto. It is heeebt oedebed that a commission issue, in the above en- titled special proceeding, out of and under the seal of this court, directed to , Esq., counsellor at law, residing in said city of and State of authorizing him to take the testimony of said X. Y., under oath, (*) upon Interrogatories to be annexed to said commission; (or from C*) : partly upon oral questions and partly upon written interrogatories to be annexed to said commis- sion; or from (*): upon oral questions and Without written interro- gatories) ; and It is fukthee oedebed that said j ; be at liberty to join in such commission, and that it be returned by mail addressed to the surrogate of the county of (and that the trial of this special proceeding be stayed until the return of said com- mission.) Surrogate. Where an application for a commission is made to tlie sur- rogate, he may, in his discretion, direct that it issue to take the testimony upon oral questions, or partly upon oral ques^ tions and partly upon written interrogatories (§ 893), except where the adverse party is an infant or the committee of an Ch. 9, § 232. WITNESSES, DEPOSITIONS, DISG0V2uT, ETC. 321 Eorm : Commission. adjudged incompetent person. (§ 895; See Frounfelker v. D. L. & W. R. R. Co., 81 App. Div. 67, 80 Siipp. 701.) Section 232. — Form : Commission. THE PEOPLE OP THE STATE OP NEW YORK To , Esq., Counsellor at Law, residing in the city of County of and State of Send Greeting: Be it known uxto you, that, with full faith in your prudence and competency, we have appointed you a commissioner, and by these presents do authorize you to examine, under L. S. oath, X. Y., of the city of in your State, as a witness in a special proceeding now pending in our Surro- gate's Court of the county of , in the State of New York, (for the probate of the last will and testament of late of the city of in said county, deceased), upon the interrogatories annexed to this commission; (or, partly upon the written interrogatories annexed to this commission and partly upon oral questions: or, upon oral questions and without written interrog- atories;) to take and certify the deposition of the said witness and to return the same, together with this commission, according to the directions hereunto annexed. In testijiony whereof, we have caused the official seal of our said Surrogate's Court of County, to be hereunto affixed. Witness, Hon surrogate of our county of . . . ., at the surrogate's office in the city of , N. Y., on this the .... day of in the year one thousand nine hundred and L. Si • ., Surrogate. (Or, Clerk of Surrogate's Court. Attorney for , Petitioner, (Office address.) Di recti ons for Exeouting the Commission.^ '(Her fe-inaorLfull copies o f se ctions 90 T~anJ~9Q2 of the Code of Civil Procedure, wfeich must be~annexed to the^ggmaMSsion,. (See § 901 sui. 7 Unless the parties stipulate in writing, or the order granting the coinnlission prescribes, how it shall be returned, the surro- gate must endorse, upon the commission, the proper direction for that purpose (§ 892), as, for instance: Directions for Return. Let the within commission be returned through the post-ofBee directed 223 PART I : GENERAL PROCEDURE. Cii. 9, § 233. Service and Settlement of Interrogatories. to the surrogate of the county of in the city of and State of New York. Dated at , N. Y., the day of , 19. .. Surrogate of County. Section 233. — Service and Settlement of Interrogatories. Unless the interrogatories to be annexed to the commission are settled by consent of the parties, they must be settled, upon notice, by the surrogate as prescribed in the General Rules of Practice (§ 891) ; and the interrogatories, when settled, must be annexed to the commission. (§ 892.) Rule 20 regulates the service of interrogatories and cross-interrogatories, as well as the application for their settlement: Itiile 20. Service and Settlement of Interhogatobies. — Interrogatories to be annexed to a commission issued under article second of title three of chapter nine of the Code of Civil Procedure shall be served within ten days after the entry of the order allov/ing the commission. Cross-int'errosatories shall be served within ten days after the service of the iuterrogatpricSi unle.ss a different time is fixed therefor by the order allowing the commission. In case a party shall fail to serve such cross-interrogatories within the time limited therefor, be shall be deemed to have waived his right to propound cross-interrogatories to the v/itness to be examined under the commission. Either party may, within two days after the service of the cross-interrog- atories, or within two days after the time to serve cross-interrogatories has expired, serve upon the opposing party a notice of settlement of the interrog- atories and cross-interrogatories before a justice of the court or county judge. The time at which such interrogatories or cross-interrogatories shall be noticed for settlement shall he not less than two nor more than tea days after the service of the notice. If neither party serves such a notice within the time limited therefor, the interrogatories and cross-interro,§atories are to be deemed settled as served, and shall be so allowed without notice. Although interrogatories and cross-interrogatories are to be settled under this rule, yet, " either party must be allowed to insert therein any question, pertinent to the issue, which he proposes." (§ 892.) That right, the surrogate can neither deny nor curtail; but he has authority to disallow questions not pertinent to the issue and hence to determine whether a proposed question is pertinent. (Irving v. Royal Exchange As- surance, 122 App. Div. 56, 107 Supp. 83.) Inasmuch as he can- not foresee precisely what evidence the exigencies of the trial may render proper, and as the statute reserves the right to either party at the hearing to make any objections to questions or answers which he could make if the witness were testifying orally, the powfei" to exclude questions should be sparingly exercised. (Wanitmdker v. Megraw',- i6"S N: Y. 125, 133.) Ch. 9, § 231. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 323 Form ; Interrogatodes to Annex to Commission. If the surrogate, in settling the interrogatories, disallows a pertinent question he commits an error which is reviewable by appeal from the order of settlement; but if he allows an improj'er question there is no right of appeal, because such allowance does no substantial harm inasmuch as the party objecting to the question may protect himself on the trial. {UUne V. N. Y. C. & H. R. R. Co., 79 W. T. 175.) The General Rules of Practice contain no directions con- cerning the settlement of interrogatories ; and, for that reason, they must be settled in accordance with the practice in force when the Code became operative. {Brewer v. Press Piib. Co., 20 Misc. 509, 46 Supp. 639.) Section 234. — Form : Interrogatories to Annex to Commis- sion. (Title of Proceeding.) Interrogatories, on the part of the petitioner, (or, contestant, or, re- spondent), to be administered to X. Y., the witness to be examined, under oath, before , Esq., commissioner, in the city of State of , under the annexed commission In the above entitled special proceeding, now pending in the Surrogate's Court of the county of and State of New York. First: What is your name, age, occupation and place of residence? Second: Were you acquainted with , late of the city of county of and State of New York, in his lifetime? If so, how long did you know liim? Thikd: Lastly: Do you know of anything else concerning the matters in question (or, relating to the execution of said instrument purport- ing to be the last will and testament of said or to the condition of his mind at hat time) that may tend to the advantage of the petitioner, (or, contestant; or, respondent?) If so, declare the same fully as if you had been particularly interrogated concerning it. Attorney for Petitioner. (Or, Contestant, or, Respondent.) (Office address.) (Title of Proceeding.) Cross-interrogatories on the part of the contestant, (or, petitioner, or, respondent,) to be administered to X. Y., the witness to be examined under oath before , Esq., commissioner, in the city of State of under the annexed commission, in the above entitled special proceeding now pending in the Surrogate's Court of the county of , and State of New York. 234 PART I : GENERAL PROCEDURE. Ch. 9, §§ 235, 236. Fonn ; Notice for Settlement— Form : Notice of Examination. E'irst: Second: Lastly: Do you know of anything else concerning the matters in question that may tend to the advantage of the contestant, (or, petitioner, or, respondent?) If so, declare the same fully as if you had been particularly interrogated concerning it. Attorney for , a Contestant. (Or, Contestant. Or, Respondent.) (Office address.) Section 235. — Form : Notice for Settlement of Interroga- tories. (Title of Proceeding.) Take notice, that the interrogatories of the petitioner, (or, con- testant, or, respondent) to be annexed to the commission issued in this proceeding, of v/hlcli a copy heretofore has been served upon you, to- gether with the cross-examination proposed by the contestant, (or, petitioner, or, respondent) wiil be presented to the Hon surrogate of county, at the surrogate's office in the city of , N. Y., on the day of , 19. ., at 10 o'clock in the forenoon, for settlement. Dated at , N. Y., the day of , 19. .. Tours, etc., Attorney for , Petitioner. (Or, Contestant. Or, Respondent.) (Office address.) The interrogatories, when settled, should be endorsed by the surrogate, as, for instance: I The within interrogatories and cross-interrogatories are allowed. Dated at the . . : . day of 19 Surrogate. Section 236.— Form: Notice of Examination upon Oral Questions. (Title of Proceeding.) Take notice, that X. Y. will be examined as a witness on the part of the petitioner (or, contestant, or, respondent) herein, upon oral ques- tions, before , Esq., the commissioner heretofore ap- pointed by the Surrogate's Court in this special proceeding for the pur- ijose of taking the testimony of said witness, at the office of said Ch. 9, § 237. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 225 Form : Stipulation for Commission. , No street in the city of and State of , on the day of , 19. ., at 10 o'clocli in -the forenoon. Dated at , N. Y., the day of , 19. .. Yours, etc., Attorney for , Petitioner. (Or, Contestant. Or, Respondent.) (Office address.) Where an examination is to be made upon oral questions, written notice of the time and place thereof must be served upon the adverse party at least five judicial days prior thereto; " and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party, and the place where the deposition is to be taken." (§§896 <£ 899.) Section 237.— Form : Stipulation for Commission. (Title of Proceeding.) It is hereby stipulated, pursuant to section 908 of the Code of Civil Procedure, that a commission issue in the above entitled special pro- ceeding, out of and under the seal of the Surrogate's Court of county, directed to Esq., counsellor at law, residing at No street in the city of State of , authorizing him to take the testimony of X. Y., of the same place, under oath (*), upon interrogatories to be annexed to said commission; (or from (*): partly upon oral questions and partly upon interrog- atories to be annexed to said Commission; or from (*): without written Interrogatories, and that his deposition be taken upon oral questions; or from (*): upon oral questions, and also to take the testimony of of the same place upon written inter- rogatories to be annexed to said commission); that the contestant (or, petitioner or, respondent); be at liberty to join in such commission; and that it be returned through the post-office, addressed to the surro- gate of county at , N. Y., (and that the trial of the proceeding be stayed until the return of said commission. Dated at , N. Y., the . . . . day of , 19. .. Attorney for , Petitioner. (Office address.) Attorney for , Contestant. (Office address.) 326 PART I : GENERAL PROCEDURE. Cii. 9, §§ 288, 239. Form : Letters Rogatory — Discovery of Books and Papers. On filing this stipulation an order accordingly naay be en- tered ; and the attorney vtho procures , the order, may insert in the commission, or endorse upon or annex to it, the neces- sary directions for the execution and return thereof, accord- ing to the stipulation. (§ 908.) Section 238.— Form ;' Letters Rogatory. THE PEOPLE OP THE STATE OF NEW YORK, To any Judge or Tribual, having jurisdiction of civil causes. In the City {or, Province) of in the Kingdom of , Greeting: Whereas a certain special proceeding now is pending in our Surro- gate's Court in and for the county of , in the State of New York and United States of America, which L. S. has been instituted upon the petition of for the probate of the last will and testament of , deceased, and wherein and are parties respondent; and it has been suggested to us that there are witnesses residing within your jurisdic- tion, without whose testimony full justice cannot be done between said parties: Now, THEEEFORE, WE REQUEST Tou, that, in furtherance of justice, you will, by the proper and usual process of your court, cause such witness or witnesses as shall be named or pointed out to you by said parties, or either of them, to appear before you, or some competent person by you for that purpose to be appointed and authorized, "at a precise time and place, by you to be fixed, and there to answer, on theif oaths and affirmations, to the several interrogatories hereunto annexed; and that you will cause their depositions to be committed to writing and returned to us under cover, duly closed and sealed up, together with these presents. In testimony whekeof, we have caused the official seal of our said Surrogate's Court of County, to be hereunto affixed. Witness, Hon , surrogate of our county of , at the surrogate's office in the ciiy of (L. S.) New York, on this the .... day of ;.., in the year one thousand nine hundred and Surrogate. Attorney for (.Office address.) Section 239.— Discovery of Books and Papers. Prior to the Code, the surrogate was authorized to require the production of a paper, material to any inquiry pending in Ch. 9, § 240. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 337 Discovery : "When Compelled. his court, by a subpoena duces tecum, and, beyond this, he was not empowered to compel the discovery of documentary evi- dence; but the Surrogate's Court has now the same powers in this particular as other courts of record. The provisions of sections 803-809, concerning the " Discovery of books and papers " are made applicable " to Surrogates' Courts and to the proceedings therein, so far as they can be applied to the sub- stance and subject-matter of a proceeding without regard to its form," except where a contrary intent is expressed in, or plainly implied from^the context of, a provision of Chapter 18. (§ 2538; see sec. ^3 ante.) Section 803, as recently amended by inserting the words below italicized, is as follows : § 803. The ConBT M.\y Dieect DiscovEiiY of Books, etc. — \ court of record, other than a justices' court in a city, has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to talie a copy, of a hoolc. document, or, other paper, or to make ducoievy of any article or property^ in his possession or under his control, relating to the merits of the action, or of the defence therein. (1909 ch. 173.) Rules 14) 15 and 16 of the General Rules of Practice " pre- scribe the cases, in which a discovery or inspection may be so compelled, and the proceedings for that i)urpose, where the same are not prescribed" in the Code. (§ 804.) The pro- cedure in the Surrogate's Court is substantially the same as in other courts of record, and its discussion belongs projDerly to a work upon general pi"actice; but for convenience its essential features are here briefly outlined. Section 240.— Discovery : "When Compelled. Any party to a special proceeding in the Surrogate's Court. may he compellM to make any discovery of hook, document, record, article, or property in his possession or under his control or in the possession of his agent or attorney, upon its appearing to the satisfaction of the court th.Tt such hook, document, record, article, or property is material to the decision of the * * * special proceeding, or some motion or application therein, or is competent evi- dence in the case, on an inspection tliereof is necessary to enable the party to prepare for tTial. (Rule 14 of Oeneral Rules of Practice.) In so far as this rule provides that a party may be com- pelled to make discovery of an " article, or pfopcrty " the Ap^ pellate Division held that it was unauthorized by the statute iand that the convention of judges had no power to adopt it (Auerbach v. D. L. & W. R. R. Co.. 66 App. Div. 201, 73 Supp. 118) ; but the recent amendment (1909 ch. 173) to section 803, 338 PART I : GENERAL PROCEDURE. Ch. 9, § 341. Petition for Discovery. wherebj'^ the words "' or to make discovery of any article or property " have been incorporated in it, doubtless renders that decision obsolete and makes the rule effective in its entirety. (See sec. 239 ante.) A discovery will not be ordered to enable a party to ascer- tain whether he has a claim, demand or defense, or whether he may find entries or papers that will be beneficial to him in the preparation or trial of his case {Broirncll v. Nat. Bank of Gloversville, 20 Hun 517; Nathan v. Whitehill, 67 Hun 398, 22 Supp. 63, 51 8t. Rep. 457 ; Hayden v. Van Gortlandt, g"4 Hun 150, 32 Supp. 507, 65 Bt. Rep. 836), except upon an account- ing; but where trust relations exist the fullest disclosure should be made and will be compelled. [Harding v. Field, 18 Supp. 918, 46 m. Rep. 628.) Section 241. — Petition for Discovery, To entitle a party to have any discovery or inspection he must present a verified petition to the surrogate praying there- for. ( §§ 805 & 2538.) The application must be by petition and cannot be based upon an affidavit. [Lee v. Winans, 99 App. Dir. 297, 90 Stipp. 960.) It is regulated by the following rule of the General Rules of Practice: Rule 15. Form' or Applicatiox foe DiscbvEHY of Books. — The moving papers upon the application for such discover.v or inspection shall state the facts and circumstances on which the same is claimed, and Shall be verified b.v affidavit stating that the hooks, papers, articles, property, and documents whereof discovery or inspection is sou.sjht are not in the possession nor under the control of the party applying therefor, hut are in the possession or under the control of the party against whom discovery is sou.£;ht or his agent or attorney. The party applying shall show to the satisfaction o£ the court or judge the materiality and necessity of the discovery or inspection sought, the particular information which he requires, and in the case of hooljs and papers, that there are entries therein as to the matter of which he seelss a discovery or inspection. The petition must state facts and circumstanres to satisfy the surrogate that the book or paper, sought to be examined, contains material evidence for the party; and it is not suffi- cient that the applicant merely believes or is advised that such evidence may be found. {Goodyear^s Rubber Glove Go> V. Gorham, 83 Hiin 342, 31 8upp. 965, 64 St. Rep. 735 ; WaWt V. Press Co., 48 App. Div. 333, 62 Supp. 833.) It should con- tain an affidavit of merits and be verified by the party himself (Fromme v. Lisner, 63 Hun 290, 17 Supp. 850, 43 St. Rep. Ch. 9, §§ 243, 243. WITXESSEb, DEPOSITIONS, DISCOVERY, ETC. 229 Order to Show Ciiuse— Order for Discovery. 361), and should describe definitely the books or papers sought for discovery or Inspection. (Cornish v. Wonnser, 53 Hun 40, 5 Supp. 889, 24 St. Rep. 660.) Section 242.— Order to Show Cause. Upon presentation of a proper verified petition " an order may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the Surrogate's Court, at a time and place, and upon a notice therein specified, why the prayer of the petition should not be granted ; and, if necessary or proper, tliat his proceedings be stayed until the hearing of the applica- tion, although the stay exceeds twOnty days." (§ 805.) Such an order may be vacated) by the surrogate who made it, upon satisfactory proof by affidavit that it ought not to have been granted ; or that it has been complied with ; or that the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document, or other paper, directed to be produced or inspected. (§ 806.) Section 243.— Order for Discovery. § 807. Proceedings Upon the Eetokn of the Oedeb. — Upon the return of the order to show cause, the court taay make such an order, with respect ta the discovery or inspection prayed for, as justice requires. Where either is directed, a referee may ho appointed by the order, to direct and superintend it ; whose certificate, unless set aside by the court, is pre- sumptive, and, except in proceedings for contempt, conclusive evidfencfe, of compliance or non-compliance with the terms of the order. A fixed sum, not exceeding twenty dollars, may be added to the costs of the motion, for the fees of the referee. (1876 ch. 448.) The contents of the order furthermore is provided for by the following rule of the General Rules of Practice: Rule IG. Ordeh. Wh.it to Contain — Ohdee foe DiscotEiiY to Opeeate as A Stay of Peocbedings. — The order for granting the application shall specify the mode in which the discovery or inspection is to be made, which may be either by requirins; the party to deliver sivorn copies of the matters to be dis- covered, or to allow an inspection with copy; or hy i-equ iriu.G: him to produce and deposit the same with the clerk, unless otherwise directed in the order. The order shall also specify the time within v.hich the discovei-y or inspec- tion is to be made, and when papers, article*:, or property are required Co be deposited or inspected the order shall specify the time the deposit or the opportunity for inspection shall continue. The court or judge may direct that the order directing the discovery or in- spection shall operate as a §tay of all other proceedings in the cause, either in whole or in part, until such order shall have been complied with or vacated. A book, document, or other paper, produced under such an 330 PART I : GENERAL PROCEDURE. Ch. 9, § 244, Form : Petition for Discovery. order, " has the same effect, when used by the party requiring it, as if it was produced upon notice, according to the practice of the court. (§ 809.) As an inspection is not a matter of right, the granting of the order is discretionary with the surrogate; but, as a gen- eral thing, this discretion will be exercised liberally to enable the party to prepare for trial (Mart v. Ogdensiurg & L. C. R. R. Co., 69 Hun 497, 23 Supp. 713, 52 8t. Rep. 834), and it is not reviewable by the Court of Appeals. {Finlay v. Chapman, 119 N. Y. 404.) The manner of enforcing such an order, and the penalty for disobedience thereof, are prescribed in section 808. Except as authorized by sections 803-809, it seems that the Surrogate's Court has no power to compel a discovery or in- spection of books or documents, even though in the possession of an executor or administrator. (Dale v. Stokes, 5 Redf. 586, afd, as Matter of Stokes, 28 Hun 564 ; Matter of Wood- ward, 28 Misc. 602, 59 Supp. 1080.) Section 244. — Form : Petition for Discovery. (Title of Proceeding.) To THE suKtiOGATE's COURT of County: The petition of , . respectfully shows : that he is the petitioner (or, a Contestant or, a respondent) in the above entitled spe- cial proceeding Which has heen instituted in the Surrogate's Court of county for the purpose of procuring a judicial settlement of the account of ; as executor of the last will and testa- ment of , deceased, (or othenoise state object of pro- ceeding) and is now pending and at issue upon objectibns filed to said account; (or othenoise state condition of proceeding), and That it is necessary for your petitioner, in order to enable him to prepare for the trial of the issues herein, to obtain a discovery Or in- spection of a certain book (or, paper or, document) to wit: (fully de- scribe book, paper or document of ichich discovery or inspection is sought) which said book (or, paper or, dflcument) relates to the merits of this proceeding and is material to the decision thereof; and That the said book (or, paper or, document) is not in the possession nor under the control of your petitioner, but is in the possession or under the control of the said (or, contestant or, respondent) or his agent or attorney, and that your petitioner has demanded of thei said (or, contestant or, respondent) leave to inspect said book (or, paper or, document) but he has been refused: and That (state facts showing the materiality and necessity of the di» Ch. 9, § 245. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 231 Form : Order to Show Cause why Discovery should not be Allowed. covery and inspection sought; the particular infortnoAion which, is re- quired; and, in the case of books or papers, that there are entries therein as to the matter of which a discovery or inspection is sought.) Wheeefoee your petitioner prays this court to grant an order directing said (or, petitioner, or, respondent) to produce and discover the said book, (or, paper or, document) or to give your peti- tioner and Inspection and copy, or permission to take a copy, thereof. And your petitioner will ever pray, eti y(Signature.y STATE OP NEW YORK, 1 y ss. A County of .... ) , . of the city of , in said county and State, being duly sworn, says: that he is the petitioner named in the fore- going petition, and that said petition is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on in- formation and belief, and that as to those matters he believes it to be true; and That the book (or, paper or, document) whereof discovery or in- spection is sought, is not in the possession nor under the control of your petitioner, the party applying therefor, but is in the possession or under the control of said , (or, contestant or, respondent) against whom discovery is sought, or, his agent or attorney. (Jurat.) ■ (Signature.) Section 245.— Form : Order to Show Cause why Discovery- should not be Allowed. At a Surrogate's Court, in and for the County of , held at the Surro- gate's OfBce in the city of N. Y., on the day of , 19... Tpresent, Hon , Surrogate. '(Title of Proceeding.) On reading and filing the petition of , a contestant (or, the petitioner, or, a respondent) in the above entitled special pro- ceeding, verified , 19.. ,praying for a discovery or inspection of (state book or paper or d6cument an described in.-, petition) now in the possession or under the control of a party to this proceeding, or his agent or attorney, and on motion of , Esq., attorney for said petitioner. It is hereby oedeked that said ...'!'.. ...'.^ , .~. . . allow such dis- covery and inspection, as prayed for in said petition, or show cause before our Surrogate's Court at the Surrogate's office in the city of , N. Y., on the day of . . . . , 19. ., at 10 o'clock in the 333 PART I : GENERAL PROCEDURE. Ch. 9, § 246. Porm : Order Allowing Discovery or Inspection. forenoon of that day, why said petition should not be granted; and It is fuethee oedeeed that a copy of this order, and of said petition, be served upon said (or, upon , Esq., attorney for said ) on or before fhe day of Surrogate. Even before the retui'ii day this order may be vacated by the surrogate upon satisfactory proof by aflSdavit that it ought not to have been granted ; or that it has been complied with ; or that the party has not possession or control of the book, document or paper directed to be produced or inspected. (§ 806.) However, in view of the general procedure' peculiar to the Surrogate's Court, it would seem that the better prac- tice is to dispose of the whole matter upon the return of the order to show cause and not on any preliminary application. Section 246. — Form : Order Allowing Discovery or Inspec- tion. At a Surrogate's Court, in and for the County of , held at the Surro^ gate's Office In the city of , N. Y., on the day of , 19... (Present, Hon Surrogate, '(Title of ProceMin^.) ■ On reading and filing the petition of , a contestant (or, the petitioner, or, a respondent) in the above entitled special pro- ceeding, and on the order, granted thereon and dated 19. ., to show cause why a discovery or inspection of (state booTc, paver or docu- ment as described in petition) should not be allowed to said petitioner by , a party to this proceeding, in whose possession or under whose control said book (or, paper, or, document) is; and on filing proof of the due service of said petition and order (as by said order required) upon said , <(or, upon Esq.,' attorney for said ,) on the day of 19. . ; and on reading and filing (name papers read in opposition, if any) ; and after hearing , Esq., attorney for said in favor of said application, (and , Esq., at- torney for said , in opposition thereto.) It is heeeby oedesed that an inspection by said petitioner (and his attorney) of said book (or, paper, or, document, fuUy describing it) be, and the same hereby is, allowed in the Ch. 9, § 247. WITNESSES, DEPOSITIONS, DISCOVERY, ETC. 233 Witness Incompetent : Personal Transactions with Decedent. following manner: (State manner of inspection, which may be either iy requiring the party to deliver a sworn copy of the matter to lie dis- covered, or to allow an inspection with copy, or by requiring him to produce and deposit the book, paper or document with the cleric} an4 that said inspection take place within .... days from the date of this order. (If book, paper or document is required to be deposited or inspected, the order must specify also how long such deposit or the opportunity ■for. mch itispection sh(iU continue.) Surrogate, Where a discovery or inspection is directed the order may name a referee to superintend it; and his certificate, unless set aside by the court, is, (except in proceedings for contempt), conclusive evidence of compliance or non-compliance with the terms of the order. The referee's fees, not exceeding twenty dollars, may be fixed by the order and added to the motion costs. (§ 807.) Section 247. — Witness Incompetent : Personal Transactions with Decedent. The jurisdiction of the Surrogate's Court is limited almost entirely to matters connected with the administration and devolution of decedents' estates, and, as many special pro- ceedings therein involve transactions by or with a person who has since died, it may be serviceable, in concluding this chapter, to make some reference to the competencij of a wit- ness as affected by his interest in the estate which furnishes the subject-matter of the proceeding wherein he is called upon to testify. However only^ a few observations will be made upon this subject, as it belongs to the general law of evidence and is not within the scope of this work. Except as otherwise specially prescribed "by statute, a per- son is not excluded or excused from being a witness, by reason of his or her interest in the event of the special proceeding; or because he or she is a party thereto, or the husband or wife of a party thereto, or of a person in whose behalf the special proceeding is brought, prosecuted, opposed, or defended. (§ 828.) And there is also the following section: § 2544. BEQnEST, ETC., DOES NOT DlSQUALIFT, ETC., WITNESS. A pei'SOn IS 234 PART I : GENERAL PROCEDURE. Ch. 9, § 247. Witness Incompetent : Personal Transactions with Decedent. not diaqualifled or excused, from testilying respecting the execution o£ a will, by a provision therein, whether it is beneficial to him or otherwise. (1880 eft. 178.) This provision, however, relates only to a subscribing wit- ness to a will and makes hiio competent to testify to its execution no matter what his interest may be; but, except a sul}SoriMng witness, it does not authorize or permit a bene- ficiary to testify, where, under section 829, his testimony would be excluded. [Matter of Eysaman, 11.3 ,Y. Y. 62.) The following provisions, also relating to a subscribing witness and taken from the Revised Statutes (2 R. 8. 65, §§ 50 <£ 51), have been re-enacted in the Decedent Estate Law: § 27. Devi.sb or Bequest to Sobsckibing Witness. — If any person shall be a subscribing witness to the execution oi any will, whtjrcin any licnefleial de- vise, legacy, interest or appointment of any real or personal estate shall bo made to such witness, and such will cannot l)e proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns sucli witness, or any claiming under him ; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made. But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that v^ould have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them, (1909 ch. 18.) The fact that the donee of a naked power under a will, or an executor named therein, may be entitled to commissions for his services does not render him beneficially interested under these provisions so as to annul the appointment. (McDonough v. Loiighlin, 20 Bari. 238.) As a person no longer is excluded from being a witness by reason of his interest in the event of an action or a special proceeding, or because he is a party thereto, a very just rule has been adopted by statute to prevent the surviving party to a transaction from having the unfair advantage of giving his version of the matter where the other party is prevented by death from being heard to contradict or explain. (Card v. Card, 39 W. Y. 317, 323; Cole v. Sioeet, 187 .A^. Y. 488.) This rule is contained in the following section : § 829. Whex Paety Not to be Examined as a Witness as Aoainst Paett Representing a Deceased Person. — Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through or under whom such a party or Interested person derives his interest or title by assignment or otherwise, shall not be Ch. 9, § 348. WITA'ESBES, DEPOSITIONS, DISCOVERY. ETC. 233 Same Subject : Of the Disqualifying Interest. examined as fL witness in Ills own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or sur- vivor of a deceased person or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunafic, by assignment or otherwise concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same trangaction or communication. A person shall not be deemed interested for the purposes of this section by reason of being a stocltholder or officer of any banking corporation whieh is a party to thp action or proceeding, or interested in the event thereof. (1881 eft. 703.) These prohibitions do not relate to the materiality of evi- dence but only to the competency of the witness, and, to be available, they must be invoked by appropriate objections; and where the objection does not challenge the competency of the witness, upon any grounds furnished by the section, or where it is only a general objection to the evidence or to the question, it will not sufQce. {Hoag v. Wright, 174 N. Y. 36.) The objection should be to the effect that the witness is incom- petent to answer the question because it relates to a per- sonal transaction or communication between him and the de- cedent, {Russell V. Hitchcock, 105 App. Div. 315, 93 S^ipp. 950.) Indeed, a general objection to a question, or to a wit- ness, without specifying the ground of the objection, is not sufficient. {Levin v. Russell, 42 N. Y. 251; Quinby v. Strauss, 90 N. Y. 664.) Section 248. — Same Subject : Of the Disqualifying Inter- est. Interest in the question is not enough to disqualify a wit- ness under section 829, but it must be in the event of the pro- ceeding; and unless he will gain or lose thereby, either di- rectly, as in money, or indirectly, because the record may be used as evidence for or against him, he is not disqualified. {Eisenlord v. Clum, 126 A^. Y. 552, .556; Albany Go. Sav. Bank V. McCarty, 149 Isf. Y. 71.) The mere fact, therefore, that the witness is a party to the proceeding does not render him incompetent to testify concerning a personal transaction or communication with the deceased person {Whitehead t. Smith, 81 -A^. Y. 151) ; and, where his interest is adverse to that of the party calling him, he is not disqualified as he does 336 PART I : GENERAL PROCEDURE. Ch. 9, § 248, Same Subject : Of the Disquajifyirig Intdest. not testify "in his own behalf or interest." {Carpenter v, Soule, 88 N. Y, 251, 257.) Moreover, where a witness is called by the adverse party, and examined as to a personal transac- tion with the deceased in reference to which he would be pre- cluded from testifying in his own bebalf, he may state the whole conversation or transaction and thereby explain or qualify the testimony called out on his direct examination (Cole V. Sweet, 187 N. Y. 488) ; and the same rule applies where the evidence is elicited on cross-examination. (iV^a?/ v. Gurley, 113 iV. Y. 575; Matter of Cosine, 104 App. Div. 182, 93 Supp. 557.) In a probate proceeding, a person named in the will as executor is not thereby precluded from testifying to personal transactions with the testator (Bvgg v. Rugg, 83 N. Y. 592), even though he is a party to the proceeding and may become entitled to commissions as executor if the will be admitted to probate {Matter of Will of Wilson, 103 N. Y. 374) ; nor is a trustee under a will incompetent to testify in support thereof, merely because he may receive a reasonable compensation for his services as such. {Blatter of Chase, 41 Hiin 203, 4 St. Rep. 195.) In such cases the compensation is given by statute and not by the will ; but if a legacy should be given to the executor or trustee in lieu of commissions, or as a part of his com- pensation, a different question would be presented. It has been held also that an executor of the creator of a trust is a competent witness, as against an executor of the deceased trustee, to testify as to property turned over by him to such trustee. {Putnam v. Lincoln Safe Deposit Co., 87 App. Div. 13, 83 Supp. 1091.) On the other hand, if the executor or trustee be also a legatee the rule is otherwise {Lane v. Lane, 95 N. Y. 494) ; for one having a beneficial interest under a will — unless he be a subscribing witness or has released his interest — is disquali- fied to testify in support of the will concerning transactions with the testator. {Loder y. Whelpley, 111 N.-Y. 239.) It has been held that this disqualification extends even to testimony concerning a conversation between the testator and the at- testing witness, ojccurring when the will was executed, al- though the witness took no actual part in it but was only a Ch. 9, § 249. WITNESSES, DEPOSITIOKS, DISCOVERY, ETC. 237 Same Subject : Release of Interest. listener [Matter of Bernsee, 141 2V". Y. 389), and also to any testimony as to the acts or conduct of the testator tending to show mental capacity (Matter of Eysaman, 113 N. Y. 62) ; but it is difficult to reconcile these cases with the later deliverance of the Court of Appeals in Hutton v. Bmith (175 N. Y. 875) wherein, after a full review of former decisions, the rule seems to be laid down that an interested witness may testify to con- versations or transactions between a person since deceased and a third party, in the presence or hearing of the witness, if he neither participated in the conversation, by word or sign, nor is referred to in the course of it, nor is in any way a party to it. {8ee also O'Brien v. Weiler, 140 2V. Y. 281, 286; Farrar v. Fanner's Loan & Trust Co., 85 App. Div. 367, 83 t^upp, 172; Matter of Andreics, 97 App. Div^ 429, 89 Supp. 965; Wilber v. Gillespie, 127 App. Div. 604, 112 Supp. 20.) Section 829 does not disqualify a subscriting witness to the will, {ticc sec. 439 post; Matter of Eysaman, 113 JSf. Y. 62, 74.) Section 249. — Same Subject : Release of Interest. At common law the competency of a witness, not a party but who was disqualified by interest, inight be restored by a proper release-, assignment or other proper conveyance; and it was not necessarj^ that the release actually be delivered by the relessor into the hands of the relessee, but it might be de- posited in c'ourt for the use of the proper party. Prior to the Code this practice was resorted to, in proceediilgs before the Surrogatie's Court, to qualify an otherwise incompetent wit- ness; and its legality was unquestioned. Thus, in Meehan v. RoiirJce (2 Brad. 3S5) the very learned Surrogate Bradford assumed that a legatee, upon releasing hig legacy, became a competent witness in support of the will ; and in Coffin v. Coffin (23 N. Y. 9) where an executor, who was both proponent and a legatee, renounced as executor and released or assigned his legacy, his competency as a witness was treated as a mat- ter of course. But the matter now is regulated by statute. A witness is no longer disqualified because he is a party, or by reason of any interest in the event of the action or special proceeding, ,(§ 828) except as he is made incompetent by section 829 where 2^8 PART I : GENERAL PROCEDURE. Ch. 9, § 349. Same Subject : Release of Interest. his testimony may involve transactions with a person since deceased ; but section 829 not only disqualifies a party, or a person interested in the event of the proceeding, but also " a person from, through or under whom such a party or inter- ested person derives his interest or title by assignment or otherwise." It is obvious that the direct and inevitable effect of a valid release by a legatee- or devisee is to transfer his in- terest to whomsoever may be entitled to the residuary estate ; for the estate of some person, who is a party to the proceeding or interested in the event, or both, is enlarged by such a re- lease precisely as though a direct assignment or conveyance had been made to him by the witness. The form by which the transfer of interest is accomplished is not important; and if it results in vesting the title to the property released in an- other person, who is a party to the proceeding, or interested in its event, the case is within both the letter and the spirit of the prohibitions of section 829. {O'Brien v. Weiler, 140 ■N. Y. 281; Bennett v. Bennett, 50 App. Div. 127, 63 Supp. 387.)' However, in a probate proceeding, it has been held that such a release divests the interest of a legatee and renders him a competent witness. {Matter of Will of Wilson, 103 JSf. Y. 374.) In this case Chief Judge Ruger summarily disposed of the matter in this fashion : The interest which the witness might have taken as legatee under the will was effectually discharged by the release. It was an instrument under seal importing a consideration, and its effect was to swell the residuum of the estate and increase the amount to be distributed under the provisions of the will. The residuary legatee took nothing thereby in the right of the releasing legatee, and did, in no sense, succeed to the sum derived from, through or under any right of such legatee. Precisely how it is, in such a case, that the residuary legatee takes nothing from, through, or in the right of the releasing legatee is not apparent. {See Bennett v. Bennett, 50 App. Div. 127, 63 Sitpp. 387.) However, this decision was afterwards follovv-ed, without discussion, in Loder v. Whelpley, (111 2V. Y. 239) ; and both cases are briefly referred to in O'Brien v. Weiler. (140 Y. Y. 281) which practically, thougK not avowedly, overrules them. Ch. 9. § 250. WITNESSES, DEPOSITIONS, DISCOVJIRY, ETC. 239 Form : Release of Legacy. But, upon a review of all these authorities, it was subse- quently held, by one surrogate of New York county, that a legatee, upon releasing his interest under the will, becomes a competent witness notwithstanding section 829 {Matter of Fitzgerald, 33 Misc. 325, 68 Bwpp. 632) ; and, very likely, un- til some further adverse adjudication by the Court of Ap- peals, the old doctrine may still prevail with the Surrogates' Courts in proceedings for the prohate of wills, although it is a palpable violation of section 829. Section 250. — Form : Release of Legacy. (Title of Proceeding.) "Whereas the above entitled special proceeding has beeii ihstituted in the Surrogate's Court of county, and now is pending therein, for the probate of an instrument purporting to be (or, for the revocation of the probate of) the last will and testament of , late of the city of , deceased, wherein one is named as the executor thereof, and whereby a legacy of $ (or otherwise state bequest) has been bequeathed to the undersigned who is desirous of giving certain testimony in said proceeding, which, under the law, he now is perciuded from giving by reason of his interest arising from said legacyj and Whereas during the pendency of said proceeding, one has been duly appointed by said Surrogate's Court to be the temporary adininistrator of the goods, chattels and credits of said deceased, as provided in section 2G70 of the Code of Civil Procedure (or, upon the probate of said will, letters testamentary therein were duly issued, by the surrogate of county, to said i ; who thereupon qualified and now is acting as such.) Now, therefore, for the purpose of removing any and all such disqualifications, and in consideration of the sum of one dollar to me in hand paid by said , as the temporary administrator of the goods, chattels and credits of said deceased, (or. by said as the executor of the last will and testa- ment of said i deceased), X do hereby release, exone- rate AXD forever discharge the estate of said , de- ceased, his executors and administrators, and all and every of them, of and from the payment of said legacy, so given to me in and by said instrument or will difered for probate as aforesaid (or, by said last will and testament as aforesaid), and of and from all claim and de- mand whatsoever which how I have, or hereafter miy have, against th^ estate of said deceased, or against said executors or administrators, for or by reason of said legacy; said instrument (or; last will and testa- ment) to be and to stand, So far as I am concerned, with the same 240 PART I : GENERAL PROCEDURE. Ch. 9, § 250. Form : Release of Legacy. force and effect as if the clause therein giving me said sum of $ , the aforesaid legacy, never had been inserted therein. In witness whebeof I hereunto have set my hand and seal on thia the day of 19.., at , N. Y. ^Signature.), JL. S.)j '(Add acknowledgment.) The release before the Court of Appeals, in Matter of Wil- son (103 N. Y. 374), was in practically this form and had been given to a temporary administrator appointed during the will contest. CHAPTER X. THE TRIAL OP ISSUES. Section 251. Hearings before the Surrogate. 252. Same Subject: Statutory Provisions. 253. Same Subject: Exceptions, How Taken. 254. Decision of Surrogate. 255. Requests to Find, and Exceptions. 256. Same Subject; Summary of Practice. 257. Reference: In What Cases. 258. Reference to Take and Report Evidence. 259. Reference to Hear and Determine upon an Accounting. 260. General Powers of Referee. 261. Qualifications of Referees in Surrogate's Gourt: Number. 262. Referee to be Sworn. 263. Witnesses may be Subpoenaed to Attend before a Referee. 264. General Powers of Referee. 265. Referee's Report: When to be Made: Gonsequence of Failure. 266. Requests to Find on Trial before a Referee. 267. Same Subject: Present Rule. 268. Report where Account has been Referred to Hear and Determine. 269. Evidence Taken by Referee: When Filed with Report. 270. Gompensation of Referee. 271. Same Subject: Collection of Fees. 272. Exceptions to Report. 273. Surrogate's Action on Report of Referee to Take Evidence. 274. Surrogate's Action on Report of Referee to Hear and Deter- mine. 275. Same Subject: Within What Time. 276. Reference In New York County. 277. Form: Order for Reference to Take Evidence. 278. Form: Order for Reference to Examine Account, etc. 279. Trial by Jury. Section 251.— Hearings before the Surrogate. The special proceedings in a Surrogate's Court are of such a nature that, in most cases, they are carried through with- out opposition ; and, when no controversy arises, each step in the procedure generally is v/ell defined by the Code. But when there is a contest it will be found that express statutory pro- visions regulating the trial of the issues therein, and the pre- 241 242 PART I ; GENERAL PROCEDURE. Ch. 10, § 253. Same Subject : Statutory Provisions. liminary procedure as well, are meager. Indeed, it usually is enacted with reference to each particular proceeding, that, upon the return of the citation by which it has been com- menced, the surrogate must "proceed to hear the allegations and proofs of the parties " ; but the general procedure to be observed upon the hearing of such allegations, as well as the manner and form in which they may be presented, are left almost entirely to the discretion of the surrogate. JS^evertheless the practice in this court upon the trial of issues, and in collateral matters as well, where it is not regu- lated by statutory provisions, should conform substantially to that prevailing in other courts of record so far as the pro- cedure of the latter can be applied in substance without re- gard to mere form {Goulburn v. Sayre, 2 Redf. 310) ; or, as provided by rule 84 of the General Rule§ of Practice, " to the custonian- practice as it formerly existed in the Court of Chancery or Supreme Court, in cases not provided for by statute or by the written rules of those courts." But where any material issue of fact has been raised by an answer, it must be determined on common law evidence; and the surrogate should proceed to hear the proofs, as well as the allegations, of the parties and thereupon make his written decision stating " separately, the facts found and the conclu- sions of law," as required by section 2545, else his decree will be reversed on appeal. {Matter of Monroe, 142 N. Y. 484; Matter of Scott, 49 App. Div. 130, 62 Supp. 1059; Matter of Waterman, 112 Apjj. Div. 313, 98 Supp. 583, app. dis. 186 -Y. r. 534; Matter of Dittrich, 120 App. Div. 504, 105 Supp. 303.) Section 252. — Same Subject : Statutory Provisions. In some of the populous counties, special rules regulating the trial of issues have been adopted by the Surrogate's Court; but, as a general thing, when the issues have been made up, the trial commences upon some adjourned day and is continued from time to time, at the convenience of the sur- rogate and the parties, until its final submission to the court. The witnesses are produced and examined, as upon a trial without a jury in the Supreme Court. The stenographer is Ch. 10, § 253. THE TRIAL OP ISSUES. 243 Same Subject : Exceptions, How Taken. required to take full stenographic notes of all proceedings in which oral proofs are given, unless the surrogate otherwise directs; and the testimony so taken must be legibly written out at length, by him, from his notes, and, after being duly authenticated, must be filed in the surrogate's ofQce. (§ 2541.) The minutes of testimony, as taken by the surrogate or stenographer while the witness is testifying, before being filed, must be authenticated by the signature of the stenographer or the surrogate, as the case may be, to the eflfect that they are correct. (§ 2542.) Certain other matters of practice relating to the trial of issues of fact are provided for in the following section : § 2545. Exceptions Upon a Tbial. — An exception may be taken to a ruling by a surrogate, upon the trial by bim of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case where such an exception may be taken to a ruling of the court upon a trial, without a jury, of an Issue of fact, as prescribed in article third of title first of chapter tenth (§§ 992- 1007) of this act. The provisions of that article, relating to the nldtiner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to such a trial before a surrogate ; for which purpose the decree is regarded as a judgment, and notice of an exception may be filed in the surrogate's office. Upon such a trial, the surrogate must file in his office his decision in writing, which must state, separately, the facts found and the conclusions of law. Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law ; and an exception may be taken to such a finding or ruling, or to a refusal to find or rule accordingly. An appeal from a decree or an order of a Surrogate's Court brings up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appellant, as prescribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. (1880 ch. i78.) These are practically the only Code J)iP6visions relating to the trial of issues of fact tefore the surrogate. Section 253.— Same Subject : Exceptions, Ho'w Taken. Section 2.545 contains several unrelated provisions; and it may be of advantage to restate those referring to exceptions: First. " An exception may be taken to a ruling by a sur- rogate, upon the trial by him of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case where such an exception may be taken to a ruling of the court upon a trial, without a jury, of an issue of fact," as prescribed in sections 992-998. Second. An exception to a ruling made by the surrogate, 344 PART I : GENERAL PROCEDURE. Ch. 10, § 353. Same Subject : Exceptions, How Taksn. iefore the cause finally is submitted to him, " must be taken, at the time when the ruling is made," and " it must, at the time when it is taken, be reduced to writing by the exceptant, or entered in the minutes." (§§ 2545 <£• 995.) This applies to the rulings of the surrogate upon the admissibility of evi- dence, the competency of witnesses, and all other questions arising during the progress of the trial. Third. " Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law; and an exception may be taken to such a finding or ruling, or to a refusal to find or rule accordingly." (§ 2545.) Fourth. " An exception to a ruling, upon a question of law, made after the cause is finally submitted must be taken, by filing a notice of the exception in the surrogate's offlce, and serving a copy thereof upon the attorney for the adverse party. The exception may be so taken, at any time before the expira- tion of ten days after service, upon the attorney for the ex- ceptant, of a copy of the decision of the court * * * and a I written notice of the entry of the decree thereupon." (§§ 2545 ^ d 994.) This applies " to a ruling upon a question of law " made by the surrogate in his decision, and to a finding or ruling, or to a refusal to find or rule, upon requests to find. Under section 992 an exception to a finding of fact is neither necessary nor permissible if there be evidence to sustain it. But now it is provided by section 993 that, upon the trial of an issue of fact by the courts " a finding of faCt ioithout any evidence tending to sustain it, is a ruling upbh a question of taw within the meaning of section 992, providing that " an exception may be taken to the ruling of the court or of a referee, upon a question of law, arising upon the trial of an issue of fact. Notwithstanding the phrasebldgy of section 2545, which seems to contemplate exceptions t6 finding^ of fact, the Court of Appeals has held that the* only questions which may be raised by exceptions tinder this' section are questions of law; and that it has no relation to findings on controverted facts, or to refusals to find facts not conclusively established or not clearly inferable from the evidence. [Burger v. Burger, 111 1^. r.523.) Ch. 10, § 354. THE TRIAL OP ISSUES. 345 Decision of Surrogate. " An appeal from a decree or an order of a i^^urrogate's Court brings up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appellant, as prescribed in this section " (§ 2545) ; but only questions thus raised iy exceptions are brought up for review on an appeal, and a general exception to each and every part of the decree is insufficient. {Angevine v, Jackson, 103 N. T, 470.) By section 2545 the practice upon a trial before the Surro- gate's Court of a question of fact, and in the preparation of papers on which an appeal is to be heard, is assimilated to that prevailing on and after the trial of an action by the Supreme Court without a jury ; and, for this purpose, the surro- gate's decree is regarded as a judgment in the action* (Hew- lett V. Elmer, 103 W. Y. 156.) However, the surrogate is al- lowed, after the filing of his decision, to make additional find- ings upon the settlement of the case for appeal ( § 2545 ; Matter of Ghauncey, 32 Hun 429) ; but this practice no longer is per- missible ill other courts of record. (§ 1023.) Section 254.— Decision of Surrogate. The gtll*i*ogate never has been authorized to make a " short decision " such as was allowed by section 1022, in othef courts of record, for several years prior to September 1, 1903; but, where an issue of fact has been tried before him, the provision of section 2545 is imperative that Upon such a trial, the surrogate must file in his ofiBce his decision in writing, which must state, separately, the facts found and the cbnclusions of law. (See sec. 252 ante.) This requirement should be observed in evety contested case (Matter of Monroe, 142 N. Y. 484) ; for the rule is established that where there are no findings, with appropriate exceptions thereto, no question of laui iS pWsented to the appellate court aside from such as may arise out of exceptions taken during the trial. (Angevine v. Jackson, 103 Tsf. Y. 470; Matter of Hood, 104 N. Y. 103; Burger v. Burger, 111 W. Y. 523.) In- deed even the jurisdiction, of the Court of Appeals, in review- ing a decree of the Surrogate's Court upon appeal from the Appellate Division, is limited to queHions of law presented by proper exceptions. (Matter of Bolton, 141 jV. Y. 554.)| 246 PART I : GENERAL PROCEDURE. Ch. 10, § 355. Requests to Find/ and Exceptions. Where no decision lias been made as required by section 2545, and an apj>eal has been taken, the Appellate Division may reverse the decree and remit the proceeding to the Sur- rogate's Court (Matter of Daymon, 47 App. Div. 315, 61 Supp. 997; Matter of Scott, 49 App. Div. 130, 62 Supp. 1059; Matter of Sherwood, 75 App. Div. 342, 78 Supp. 186; Matter of Ditt- rich, 120 App. Div. 504, 105 Supp. 303) ; or it may treat the case as being improperly before the court and merely send it back to the surrogate with directions to make the requisite decision. (Blatter of Widmayer, 52 App. Div. 301, 65 Supp. 83 ; Blatter of Peck, 14 Supp. 899, 39 St. Rep. 234, 21 Civ. Pro. Rep. 85; Matter of Kaufman, 14 Supp. 901, S9 St. Rep. 236, 21 Civ. Pro. Rep. 88; Matter of Falls' Estate, 10 Supp. 41, 29 St. Rep. 759; Waldo v. Waldo, 32 Sun 251.) In some of the earlier cases, where no decision had been made, the former General Term would dismiss the appeal unless there were ex- ceptions to be considered. (Matter of Bradicay, 74 Hun 630, 26 Supp. 838, s. c, as Matter of Rolerts, 57 St. Rep. 201; Matter of Otis, 6 St. Rep. 592.) However it seems that the decision may be dispensed with where no appeal is taken, and that the surrogate's failure to make findings is an irregularity which does not invalidate the decree (Hood v. Hood, 5 Dem. 50; Matter of Hesdra, 4 Misc. 87, 23 Supp. 846, s. c, as Matter of Onderdonk, 54 St. Rep. 275 ; Matter of Hood, 104 'N. Y. 103) ; but if an appeal be taken the appellant should procure such findings or refusals to find as will present, through appropriate exceptions, the questions he wishes to argue. Section 255.— Requests to Find and Exceptions. Where the surrogate does not file his cledsion as required by section 2545, or where sUch a decision has been filed and ex- ceptions to the findings will fiot present a question which the appellant proposes to argue upon an appeal, he must obtain from the surrogate, upon the settlement of the case, such find- ings or refusals to find as he may desire and file appropriate exceptions* thereto (Matter of Peck, 14 Supp. 899, 39 St. Rep. 234, 21 Civ. Pro. Rep. 85) ; but the surrogate is not required to pass upon proposed findings until the settlement of the case by Ch. 10, § 255. THE TRIAL OF ISSUES. 247 Requests to Find, and Exceptions, him. {Hartwell v. McMaster, 4 Redf. 389; Matter of Hoyt, 5 Dem. 284; Matter of Dodge, 24 Wkly. Dig. 3.) Section 2545 provides : Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law ; and an exception may be taken to such a finding or ruling, or to a refusal to find or rule accordingly. (See sec. 252 ante.) By this provision the Legislature seems to have considered that, in the preparation of his findings, the surrogate should have the benefit of whatever mature reflection he may yield to between the time of his decision and the final settlement of the case {Matter of Chauncey, 32 Hun 429) ; and if his decision has been made without stating separately the facts found and the conclusions of law, as required by section 2545, the irregu- larity may be cured by subsequent findings, made upon re- quests to find under this provision, upon the settlement of the case. Where a request to find is ignored oif refused by the surro- gate, this is reversible error if prejudicial to the appellant. {Matter of Hicks, 47 Hun 637, 14 Bt. Rep. 320 ; Matter of Peck, 14 Supp. 899, 39 8t. Rep. 234, 21 Civ. Pro. Rep. 85 ; Matter of Kaufman^ 14 8upp. 901, 39 8t. Rep. 236.) The surrogate should note his assent or refusal on the margin of each request to find, so that the appellate court Ivill not be put to comparisons in ascertaining whether the failure to make a finding has wrought injustice. {Matter of Gillingham's Estat^f 8 Supp. 385, s. c, as Matter of Wheeler, 28 St. Rep. 638!) If, therefore, a party desires to bring- tip before the ap- pellate court questions of fact or of lawj and to review the decision of the surrogate with reference to them, he must pro- cure the appropriate findings and make the requisite excep- tions to them; for otherwise no qiiesiion of law is presented for review. {Matter of Sprague, 125 N. Y. 732, 3 Silv. Ct. of App. 388, 35 St. Rep. 450.) Where, however, the appeal has been taken from the decree and every part of it, the facts are before the Appellate Division for review {Matter of Stewart, 135 W. Y. 413), although no exception to the surrogate's de- cision has been filed; and that court may reverse upon the facts (§§ 2576 d 2586), in a proper case. (Matter of Spratt, 4 App. Div. 1, 38 Supp. 329, 73 St. Rep. 790.) 248 PART I : GENERAL PROCEDURE. Ch. 10, § 256. Same Subject : Summary of Practice. Section 256.— Same Subject : Summary of Practice. .^ " In Burger v. Burger (111 N. Y. 529), Judge Andrews, writ- ing for the Court of Appeals, indicates the procedure under section 2545, as follows — the italics being ours: ,.,», We think the true rule under the Code is, that an appeal on the facts from the decree of a surrogate admit- ting or refusing to admit a will to probate brings up for review in the Supreme Court the question of the sufiB- ciency, weight, or preponderance of evidence, and the general merits of the decision ; and that it is not necessari/ that any exception should have been taken to the findings offuct^ or that there should have been any request for findings in order to give the General Terra (Appellate Division) jurisdiction to revieio the facts, and reverse or afBrm the decision of the surrogate thereon. But where the appeal is also upon the iaw, only such questiotis oflaio can be considered as have been properly raised by exception. If an exception was taken to the conclusion of law of the surrogate, it raises the question whether it was justified by the facts found. If taken to a finding of fact, it presents the question whether there was any evidence to sustain the finding. So, where the surrogate refuses to make am/ finding whatever on a question of fact, or where he makes or re- fuses to make a ruling upon any question of law, an exception lies and his decision may be reviewed in the appellate court. But an exception to facts found, or to a refusal to find upon a question of fact is only important to entitle the appellant to have a review, first in the Supreme Court, , and afterwards in the Court of Appeals, of the strictly legal question which it is the office 'of an exception to present. But in the Supreme Court ^he facts are open for review without any exception. An application to a court for a new trial on the facts in no proper sense presents a ques- tion of law. It is an appeal to the conscience of the court, and it is asked to consider whether, on the whole facts, a new triatought not to be had. The review on the facts by the Supreme Court, of a decision of a surrogate ad- mitting a will to probate, still retains, in many features, the character 'of a rehearing in equity. This is quite clear from section 2586 of the Code, Which permits the General Term (Appellate Division), on appeal from the surrogate on the facts, to receive further testimony of Ch. 10, § 2.J7, THE TRIAL OF ISSUES. 249 Reference : In what Cases. documentary evidence and appoint a referee, and de- clares that the appellate court has the same power to decide the questions of fact which the surrogate had. Section 257.— Reference : In what Cases. § 2546. In a special proceeding other than one instituted for probate or revocation ot probate of a will, the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has pov,er to determine ; and to make a report thereon ; subject, however, to confirmation or modification by the surrogate. But no referee to examine an account rendered, whether intermediate or final, or to hear and determine all questions arising upon the settlement of such an account, shall be appointed, where the estate or fund does not exceed one thousand dollars in value, or in any case where the item or items in such account to which objections have been made do not aggregate more than two hundred dollars. Such a referee has the same power, and is entitled to the same compensation as a referee appointed by the Supreme Court, for the trial of an issue of fact in an action ; and the provisions of this act, applicable to a reference by the Supreme Court, apply to a reference msde as prescribed in this section, so far as they can be applied in substance without regard to the form of proceeding. The surrogate of the county of New York, may, on the written consent of ail parties appearing in a probate case, appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony, but without authority to pass upon the issues involved therein. Unless a referee's report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has lieen submitted to him, it shall be deemed to have been confirmed as of course and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice. (190S ch. 128.) This clumsy and rather obscure section contains four dis- tinct provisions applicable to all Surrogates' Courts : (1) The surrogate may " appoint a referee to take and re- port to him the evidence upon the facts, or upon a specific question of fact " in any special proceeding " other than one instituted for probate or revocation of probate of a will," such report being subject to confirmation or modification by the surrogate. (2) Upon an accounting, where the estate or fund exceeds $1,000 in value, and the item or items to which objections have been made aggregate more than |200, the surro'gate may ap- point a referee to examine the account rendered and " to Mar and, determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine; and to make a report thereon, subject, however, to confirmation or modification by the surrogate." (3) " Such a referee has the same power, and is entitled to the same compensation, as a referee appointed by the Supreme 250 PART I : GENERAL PROCEDURE. Ch. 10, § 258. Reference to Take and Report Evidence. Court, for the trial of an issue of fact in an action " ; and the provisions of the Code of Civil Procedure, applicable to a refer- ence by the Supreme Court, apply to a reference made as pre- scribed in section 2546, so far as they can be applied in sub- stance, without regard to the form of the proceeding; and (4) " Unless a referee's report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice." These provisions will be considered separately. Section 258.— Reference to Take and Report Evidence. Obviously the purpose of a reference " to take and report to the silrrogate the evidence upon the facts, or upon a specific question of fact ", or, in a probate case in the county of New York, " to take and report the testimony, but without authority to pass upon the issues involved therein," is merely to assist the surrogate in the trial of the cause. None of the issues are before the referee for determination ; and the statute does not authorize him to make any decision with findings of fact or conclusions of law, although this has been done where he is appointed to report the evidence with his op'uiion thereon. But whatever may be the form of such a referee's report, the ultimate decision, containing separate findings of fact and conclusions of law, as required by section 2545, should be made by the surrogate as when he himself has taken the testimony. It is proper for the surrogate, in ordering a reference of this character, to direct the referee to report the testimony taken with his opinion thereon {Blatter of Ferrigan, 42 App. Div. 1, 58 Supp. 920, affd 160 N. Y. 689) ; and such a referee has the same power to pass upon (^juestions of evidence as though appointed by the Supreme Court to try issues of fact in an action. (Matter of Walker, 43 Misc. 475, 89 Supp. 459; see Blatter of Russell, 3 Dem. 377.) The action of the surrogate in appointing a referee to take proof of the facts in any proceed- ing, other than a probate case, is discretionary and not sub- ject to review. (Matter of Pearsall, 4 Siqjp. 365, 21 St. Bep. 305.) And so a surrogate, before whom is pending a proceed- Ch. 10, § 258, THE TRIAL OF ISSUES. 251 Reference to Take and Report Evidence. ing to remove an executor or administrator for misconduct, may, of his own motion, make an order of reference to take testimony upon a question of fact involved {Matter of Hale, 45 App. Div. 578, 61 Supp. 596) ; and, of his own motion also, he may appoint a referee to take and report testimony as to whether a claim has been rejected and become barred by the short statute of limitations {Matter of Hues, 54 App. Div. 281, 66 8upp. 664), or, as to the residence of a decedent, in a pro- ceeding to appraise his estate for the transfer tax. {Matter of Bishop, 111 App. Div. 545, 97 Supp. 1098, upp. dis. 188 N. Y. 635.) And in a proceeding to determine the value of an attor- ney's services to executors, and charge the same as a lien upon the estate, the surrogate may appoint a referee to take testi- mony and report the value of such services. {Matter of Smith, 111 App. Div. 23, s. c, as Matter of Bender's Will, 97 Supp. 171.) There is no Code provision regulating the notice to be given of the hearing before a referee appointed to take testimony, but it should be a reasonable one; and a ten days notice has been held to be sufficient. {Matter of Ferrigan, 42 App. Div. 1, 58 Supp. 920, aff'd 160 N. Y. 689.) The referee should be sworn. The testimony of the witnesses should be signed by them ; the referee's report should be filed with the testimony, and exceptions to the report should be filed and served within eight days after notice of the filing thereof, as required by rule 30 of the General Rules of Practice. Before the amendments (1895 ch. 796; 1899 ch. 607), adding to section 2546 its concluding paragraph in regard to confir- mation, approval, modification or rejection by the surrogate of a referee's report, it was held that, where no exceptions were filed, the surrogate had no alternative but must confirm the report. {Matter of Lefmgwell, 30 Hun 528.) It is doubtful whether this be true under the present section; but it is a bet- ter practice to file exceptions under the rule. Notwithstanding a reference of this character the issues actu- ally are tried lij the surrogate, and, upon the coming in of the referee's I'eport with the accompanying evidence, whether with or without the referee's opinion thereon, the surrogate should be presented with requests to find and must make his decision with separate findings of fact and of law. {Matter of Moulton, 353 PART I : GENERAL PROCEDURE. Ch. 10, § 259. Reference to Hoar and Determine upon an Accounting. 10 8u2}p. 717, 32 St. Rep. 631.) This is the rule also laid down in flatter of Yettcr (44 App. Div. 404, 61 Bupp. 175, aff'd 162 jV". Y. 615) where the procedure under this section is discussed. Where an order of reference had been made directing the ref- eree to take and report evidence with his opinion thereon, but all the parties, as well as the referee, assumed that the ref- eree was authorized to hear and determine the issues, and proceeded accordingly, it was held that the surrogate had authority nunc pro tunc to enter an ordei" converting the ref- erence into one to hear and determine. {Matter of May, 53 Hun 127, 6 8upp. 356,' 24 St. Rep. 887 ; see also Matter of Leffingwell, 30 Hun 528.) Section 259.-— Reference to Hear and Determine upon an Accounting. Upon a reference " to examine an account rendered " and " to hear and determine all questions, arising upon the settle- ment of such an account, which the surrogate has power to determine ", the trial proceeds before the referee as though it were before the surrogate [Matter of Niles, 47 Hun 348, 14 St. Rep. 538) ; and there is no trial of the issues by the surro- gate hiuiself within the meaning of section 2545. The surro- gate may modify or reject the referee's report ; but any action of this sort is appellate or supervisory and not original. {Mat- ter of Tetter, 44 App. Div. AM, 61 Supp. 175, aff'd 162 N. Y. 615.) Upon the trial of the matters referred to him, such a ref- eree has practically, all the powers of tlie surrogate {Matter of Odell, 1 don. 94, 4 Supp. 463, 18 St. Rep. 997) ; and he should not permit delays except for legal cause. So if the oijector does not proceed to sustain his objections the reference should be closed and a prompt repof-t of the facts be made to the sur- rogate, whereupon the objections may be sti*icken out for want of prosecution {Matter of Williams^ 1 Con. 99, 2 Supp. 669, 17 St. Rep. 839) ; but where the accounting party neglects or re- fuses to appear, his presence with all relevant books and papers may be secured by a subpoena duces tecum whereby he will be required to attend for personal examination and pro- duce his vouchers for inspection. By a recent amendment the following restriction was put into section 2546 {see sec. 257 ante)j ...a«.;. Ch. 10, §§ 260, 361, THE TRIAL OP ISSUES. 253 General Powers of Rfferce— Qualifications of Referee^ in Surrogate's Court, But no referee to examine an account rendered, whether intermediate or final, or to hear and determine all questions arising upon the settlement of such an account', shall be appointed, where the estate or fund does not exceed one thousand dollars in value, or in any case where the item or items in such account to which olijections have been made do not aggregate more than two hundred dollars. (1908 ch. 128.) Section 260. — General Powers of Referee. It is provided in section 2546, concerning a referee ap- pointed by the surrogate, that Such a referee has the same power, and is entitled to the same compensation as a referee appointed by the Supreme Court, for the trial of an issue of tact in an action ; and the provisions of this act, applicable to a reference by the Supreme Court, apply to a reference made as prescribed in this section, so far as they can be applied in substance without regard to the form of proceeding. (See sec. 257 ante.) In Matter of Clark (119 N. Y. 427) the' Court of Appeals avoided construing this phraseology; but Judge Finch said of it: How much or how little is accomplished by this very general language it may trouble us some day to deter- mine. It seems to open everything and settle nothing. However, the Code provisions " applicable to references by the Supreme Court " seem to be reasonably definite, and, in the main, readily can be applied to references in the Surro- gate's Court; and, by virtue of section 2546, a referee, ap- pointed by the surrogate in pursuance thereof, has precisely the same powers and authority as a similar referee appointed by the Supreme Court. Therefore it may be useful to refer to those Code sections which regulate references in the Supreme Court. Section 261. — Qualifications of Referee^ in Surrogate's Court : Number. " A referee appointed by the surrogate must be free from all just objections ; and no person shall be so appointed, to whom all the parties object." (§§ 1024 d 2546;) The constitutional provision {Cons. drt. 6, § 20) applies to a reference in the Surrogate's Court, and no " judge of the Court of Appeals, or justice of the Supreme Court, or any county judge or surrogate hereafter elected in a county having a population exceeding 120,000," shall act as a referee in any proceeding therein; but, unless within this constitutional or 204 PART I ; GENERAL PROCEDURE. On. 10, § 261. - — 6rcng ra1 PoiYf'V'n n f liofi'i ' cc | Qualifications of Referee in Surrogate's Court. some statutory prohibition, there seem^ to be no reason why the surrogate of one county may not be appointed as referee in a special proceeding pending in the Surrogate's Court of an- other county. It is provided also in section 2509 that " the clerk or deputy clerk or other person employed in any capacity in a surrogate's office " shall not act as referee in any matter before the surro- gate; but, notwithstanding this general restriction, the surro- gate of the county of New York, in a probate case, " may, in his discretion, direct an assistant to take and report the testi- mony, but without authority to pass upon the issues involved therein." (§ 2546; see sec. 254 ante.) Rule 79, of the General Rules of Practice, also is applicable to a reference in the Surrogate's Court (Matter of Smith, 111 App. Div. 23, 29, s. c, as Matter of Bender's Will, 97 Supp. 171) : Bute 79. Who Mat eb Repbeeb. — Except in cases provided for by section 1011 of tbe Code of Civil Procedure {i. e., reference 6y consent)^ no person, unless he is an attorney of the court in good standing, shall be appointed sole refereS for any purpose in any pending action or proceeding. Nor shall any person be appointed a referee v/ho is the partner or clerk of the attorney, or counsel, of the party in whose behalf such application for sucb appointment is made, or who is in any way connected in business with such attorney or counsel, or who occupies tbe same office with sucb attorney or counsel. Undoubtedly anything which disqualifies a surrogate will furnish " a just objection " to a referee. It has been held that where a referee after his appointment had been retained in other matters as an attorney by the successful party, his re- port should be set aside without inquiry as to whether it had been affected by such retainer. (StelMns v. Brown, 65 Barh. 272.) So also, after a case has been submitted to a referee, it is improper for him to suggest a settlement to one party in the absence of the other; and such action is good ground for setting aside his report. [Livermore v. Bainlridge, 44 How. Pr. 357, aff'd 4rt How. Pr. 350.) And where a referee becomes disqualified during the pendency of the reference, by his ap- pointment or election as a justice of the Supreme Court, all proceedings before him come to an end. (Countfpnan v. Nor- ton, 21 Hun 17; Heerdegen v. LorecJc, 17 App, Div. 515, 45 Supp. 585.) No reason is apparent why an accouritihg may not be re- ferred to several referees, to hear and determine, as provided Cir. 10, §§ 2G2-26-1. THE TRIAL OF ISSUES. 255 Referee to be Sworn — General Powers of Referee. by section 1025; and cases may arise where sucli a tribunal would be a mosi suitable one. Section 262. — Referee to be Sworn. A referee in the Surrogate's Court should be sworn as pre- scribed in section 1016: A referee » * '■ must, Ijeforo proceeding- to hear tlie testimony, lie sworn faitlifully and fairly to try the issues, or to determine the questions referred to him, as the case requires, and to malie a just and true report, according to the best of his understanding. The oath may he administered by an officer specified in section 842 of this act. But where all the parties, whose interests will he affected by the result, are of age, and present, in- person or by attorney, they may expressly waive the referee's oath. The waiver may bo made by written stipulation, or orally- ]( it is oral, it must be entered in the referee's minutes. (1876 ch. 448.) Seotion 263. — Witnesses may be Subpoenaed to Attend before a Referee. It is provided in section 1017 that A witness may be subpoenaed to attend before a referee, * * * to testify, and, in a proper case, to bring with him a boolj, document, or other paper, as upon a trial by the court. (1876 ch. 448.) TSiis applies to a referee in the Surrogate's Court, and if may be that he has power to issue all requisite subp(Knas {see sec. 193 ante) ; but it is a general practice to have them issued under the seal of the Surrogate's Court by the clerk thereof, or by the surrogate, although requiring the witness to attend before the referee. [See sec. 195 ante.) Section 264. — General Powers of Referee. How far the general powers enumerated in section 1018 have been conferred upon a referee in the Surrogate's Court does not seem to have been adjudicated fully, as yet; but section 2546 authorizes him to exercise all such powei"s " so far as they can be applied in substance without regard to the form of pro- ceeding." When, therefore, an account has been referred to a referee " to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine," the trial by the referee must be brought on just as where it is before the Surrogate's Court ; and The referee exercises, upon such a trial, the same power as the court, to PART I ; GENERAL PROCEDURE. Cn. 10, § 265. Referee's Report : "When to be Made : Consequence of Failure. grant adjournments, to preserve order, and punish the violation thereof. Upon the trial of an issue of fact, the referee exorcises also the same power as the court, to allov/ amendments (o the ' * " pleadings; to compel the attendance of a witness by attachment ; and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify. « » • The powers, conferred by this section, are exercised in like manner, and upon lilce terms, as similar powers are exercised by the court, upon a trial. (§§ 1018 & 2546; 1876 ch. 448.) Upon such a reference the trial proceeds in like manner as though it were had before the surrogate {flatter of Niles, 47 Hun 348; 14 St. Rep. 538) ; and there is no reason why all these provisions of section 1018 should not apply to it. So far as concerns amendments, it seems to be well settled that such a referee has the same power as the surrogate to allow amend- ments to the account {Blatter of Munzor, 4 Misc. 374, 25 Supp. 818; Matter of Gearns, 27 Misc. 76, 58 Supp. 200), or to the objections {Matter of FitMan, 15 St. Rep. 734), and also that he may allow a supplemental account to be filed {Matter of Schneider, 1 App. Div. 39, 36 Supp. 972) ; but if the amend- ment, or supplemental account, goes to the suhstance rather than the form of the account as originally filed, or materially changes it in favor of the accounting party by adding other charges against the estate, it seems that a supplemental cita- tion should issue to such parties to the special proceeding as are not before the referee. The testimony of witnesses, taken upon such a reference, need not be signed by them {Matter of Russell, 3 Dem. 377) ; and, in general, the trial should proceed as though it were before the surrogate. Section 265. — Referee's Report : When to be Made : Conse- quence of Failure. As there is no other statute prescribing the time when such a referee must make his report, the requirements of section 1019 are applicable {Matter of Sarltos, 31 Misc. 76, 64 Supp. .572), except, possibly, where the reference is merely "to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact." {See Bennett v. Pittman, 48 Hun 612, 15 St. Rep. 976, s. c, as Matter of Bennett. 21 A66, 2V". C. 238; Matter of Robinson, 53 Misc. 171, 104 Supp. 588.)' The pertinent provisions of section 1019 are these : Upon the trial, by a referee. * * » the referee's written report must he either filed with the clerk (or the Surrogate's Court or loith the surrogate), or ae- Ch. 10, § 366. THE TRIAL OF ISSUES. 257 Requests to find on Trial before a Referee. livered to the attorney tor one of the parties, within sixty days from the time when the cause or matter Is Anally submitted ; otherwise either party may, hetore it is filed or delivered, serve a notice, upon the attorney tor the adverse party, that he elects to cud the reference. In such a case, the (accounting) must thenceforth proceed, as if the reference had not been directed ; and the referee is not entitled to any fees. (§§ 1019 & 2S46 ; 1882 cli. 397.) The object of this section is to induce an early decision by the referee. A definite extension of time, within which a referee may decide the issues before him, does not operate to extend the time indefinitely; nor does it affect the power of either party to terminate the reference in case the referee fails to decide within the time stipulated. Such a stipulation must be in writing as required by rule 11 of the General Rules of Practice. {Patterson v. Knapp, 83 Hun 492, 32 Supp. 32, 65 St. Rep. 188.) But a party may not terminate a reference within sixty days after the time vi hen he submits to the ref- eree his proposed findings of fact and conclusions of law, {Burritt v. Burriif, 5S Misc. 20, 102 Supp. 477.) Where the referee files his report, after the reference has been terminated by notice under section 1019, it is proper to apply on motion to the Surrogate's Court for an order setting it aside {Matter of Santos, 31 Misc. 76, 64 Supp. 572) ; and when such a reference has been terminated, because of the referee's failure to file his report, no fees or costs of the pro- ceedings upon the reference should be allowed except the fees of the stenographer. {2Iatter of Santos, supra; see Bottome V. Xeeleij. 121 App. Div. 600, 109 Supp. 120, aff'd 194 N. Y. 575.)' Section 266. — Requests to find on Trial before a Referee. After the repeal (1S9J: ch. 688) of section 1023, and until its recent re-enactment (1904 ch. 491), Avhere a trial was had before a referee either in a Surrogate's Court or ill the Supreme Court, there was no statutory' provision for requests to find or for exceptions to a refusal to make findings where such a re- quest had been made. During these ten years; however, sec- tion 2545 relating to a trial hefore the surrogate authorized, and still provides for, requests to find as follows : — Eitlior party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law ; and an exception may he taken to such a finding oi- rulinrr. or to a refusal to find or rule accordingly. {See sec. 252 anir.) But this provision cannot reasonably be applied to a referee. 338 PART I ; GENERAL PROCEDURE. Ch. 10, § 266. Requests to find on Trial before a Referee. Even if the settlement of a case may be made by the referee before whom the trial has been had — which is very doubtful — it cannot occur until after the surrogate has acted upon the report; and surely the referee cannot then be permitted, by any findings made upon requests, to modify that report for the purpose of an appeal from the surrogate's decree entered thereon, after the surrogate has passed upon the report and perhaps materially modified it. Where there has been a refer- ence to hear and determine, the case upon appeal must go to the Appellate Division upon the identical record which was be- fore the surrogate, and upon which he acted, in confirming or modifying the referee's report. {Matter of Dietzel, 36 App. Div. 300, s. c, as Dietzel v. Weber, 55 Supp. 323 ; see sec. 392 post.) In Alatter of Bayer (54 Hun 189, 7 Supp. 566, 26 St. Rep. 803), it was held that the surrogate has power to send a report back to the referee for fuller or further findings; and doubt- less this ruling is correct, and extends to references in the Surrogate's Court the same supervision which is exercised by the Supreme Court over its references. {See Schultheis v. Mclnerny, 13 Supp. 684, 37 St. Rep. 537 ; Fatrman v. Brush, 15 Supp. 44, 39 St. Rep. 231.) But the argument of the learned judge who wrote the opinion in the Bayer case, whereby he tried to show that section 1023 has no application to a special proceeditig in the Surrogate's Court, is oMter and altogether inconclusive; and his statement that When questions of fact are tried before a fhUiee, he, on the Settlement of the case, also has the power, and it becomes his duty, to pass upon all requests made for additional findings, either of fact or of law. was unwarranted. A similar dictum may be found in Matter of Niles (47 Eun 348, 14 St. Rep. 538), where the learned judge, writing the opinion, rightly says that " the findings of fact are to be presented in the settlement of the case, in issues before the surrogate, according to section 2545 of the Code," and then irrelevantly proceeds with the incorrect remark that " this provision will apply to referees who try issues from that court." Section 1023, as re-enacted (1904 ch. 491), is a duplicate of Ch. 10, § 266. THE TRIAL OF ISSUES. S59 Requests to find on Trial before a Referee, the old section, plus this last sentence: An exception may ie taken to a refusal of the court or referee to find any request thus submitted. And this added sentence takes the place of the provision in the original section 993 — which was repealed in 1895 — that " a refusal to make any finding whatever, upon a question of fact, where a request to find thereupon is seasonably made by either party," is a ruling upon a question of law. Notwithstanding the erratic dictum in the Bayer case, it is still true that the only provision of law authorizing " requests to find," where a trial has been had before a referee in the Surrogate's Court, is contained in section 1023; but, for ten years prior to September 1, 1904, there was no authority for such requests. Section 1023 does not apply to a trial before the surrogate, because there is no provision making it so ap- plicable. Moreover, the matter of " findings " and '" requests," where a trial has been had before the surrogate, is expressly regulated by section 2345. But section 1023 does apply to a trial before a referee, to whom an accounting has been referred " to hear and determine," because it is made so applicable by section 2546 which provides that the provisions o£ this act, applicable to a reference by the Siiprfeme Court, apply to a reference made as prescribea in this section, so far as they can be applied in substance without regard to the form of proceeding. (See seC. 257 ante. ) Section 1023— which went into effect September Ij 1904— sa far as it relates to a reference in the Surrogate's Courts is as' follows : Before the cause is finally submitted to * * * the referee, or within such time afterwards, and before the * * * report is rendered, as the * * • referee allows the attorney for either party may submit, in writing, a statement of the facts] which he deems established by the evidener, and of the rulings upon questions of law, which he desires the * * * referee to make. The statement must be in the form of distinct propositions of law or of fact, or bdth, separately stated ; each of which must be numbered, and so pre- pared, with respect to its length.- anrl the subject and phraseology thereof that the * * • referee may conveniently pass upon it. At or before the time, when the * * = report is ren(>rnd, the * * * referee must note, in the margin of the statement, the manner in which each propo- sition has been disposed of, and must either file, or return to the attorney the statement thus noted ; but an omission so to do does not affect the validitv of the * • * report. An exception mayie taken, to a refusal of the * * * rrfrrer to find any request thus submitted. (§§ 1023 & 2.546 ; 1004 c7i. 401.) J i " These provisions, excepting only the italicized sentence, are a duplicate of the original section 1023 under which it was 260 PART I : GENERAL PROCEDURE. Ch. 10, § 267. Same Subject : Present Rule. held by the Court of Appeals in Gormerly v. McGlynn (84 N. Y. 284) that a general rule of the Supreme Court was void which permitted a party, after the report of a referee and upon the settlement of a case by him, to present proposed find- ings of fact and required the referee to pass upon them. Section 267. — Same Subject : Present Rule. It seems, therefore, that the rule regulating requests to find is this : Where the trial is had before a referee, to whom an accounting has been referred to hear and determine, all re- iiuests to find must be made before the report is rendered, as provided for in section 1023 ; but, where the trial is had by the surrogate, all requests to find must be made upon the settle- ment of the case. Undoubtedly in actual practice requests to find may be, and often are, made to the surrogate when the case is submitted to him; but a request so made is not within the purview of the statute, and an exception to a refusal or failure to make a finding thereon raises no question of law — the exception must be to the decision filed by the surrogate, or to a ruling on a request made on the settlement of the case. Where a request is presented to the referee, as provided by section 1023, for a finding by him of certain matters of fact, deemed to have been established by the evidence, and the referee refuses to take any action thereon, it is error justifying a reversal of the decree entered on the report, if it appears that the appellant has been prejudiced thereby. {Matter of SickSj 14 St. Rep. 320 ; Matter of Mellen, 56 Huii 5S3, 9 Supp. 929, 31 St. Rep. 770.) In the Mellen case, which involved a refer- ence to " heat" alifl determine " in the Surrogate's Court, the proper practice is indicated clearly in the opinion as follows, the italics being ours: By section 2546 of the Code of Civil Procedure, the provions of that act, applicable to a reference in the Supreme Court, apply to a reference of this description directed by the surrogate.. And by section 1023 of the same Code, either palfy upon a reference in the Supreme Court is entitledio submit in writing a statement of facts which he deems - ^ Ch. 10, § 267. THE TRIAL OF ISSUES. 361 Same Subject ; Present Rule. established by the evidence, and of the rulings upon questions of law which he desires the referee to make. And at or before the time when the decision or report is rendered the referee has been directed to note in the margin of the statement the manner in which each prop- osition has been disposed of. This direction is man- datory, and should have been complied with by the referee, for the dispute concerning the accounts was referred to liim to be heard and determined by him. It is true that his determination was still subject to the approval or disapproval of the surrogate, but that did not exonerate the referee from complying with these sections of the Code of Civil Procedure. His decision when it was confirmed became the decision of the surro- gate also, who was not required to go beyond the con- firmation, or modification, or disaffirmance of the report. The findings of fact and law were to be made by the referee himself. {Matter of Niks, 47 Hun 348, 14 aS^*. Eej). 538.) And if an application had been made to the surrogate to require the referee to pass upon the requests submitted to him, and that had been refused, the appeal from the decree and order made would have required the decree to be set aside and an order made requiring the referee to comply with these directions of the law. {Boughton V. Flint, 74 N. Y. 476.) It will be noted that section 1023 permits a party to pre- sent to the referee, on or before -the final submission of the case and in a prescribed form, « a statement of the facts, which he deems established by the evidence, and of the rulings upon questions of law, which he desires the referee to malie ", where- upon Jhe referee " must note, in the margin of the state- ment, the manner in which each proposition has been disposed of, and must either fXe, or return to tM attoiney, the state- ment thus noted " ; but he is not required to put into the re- port his decision upon any such propositions. And so, where his requests have been found by the referee, an unsuccessful party may avail himself of them on appeal although they are not in the report (Bremer v. Manhattan Ry. Co., 191 N. Y. 333, 339) ; for the practice is settled that facts so found, whether or not incorporated in the report, " are for the con- sideration of the appellate courts, to enable them in reviewing 263 PART I : GENERAL PROCEDURE. Ch. 10, § 268. Report where Account has been Referred to Hear and Determine. the case to apply the proper principles of law." {Elterman V. Hyman, 192 i\^. Y. 113, 117.) The practice in this particular, where the trial court is either a judge without a jury or a referee, is stated admirably by Chief Judge Cullen in Bremer v. Manhattan By. Co. (191 N. Y. 333, 339) as follows, the italics being ours: By section 1023 each party is entitled to present to the trial court on the submission of the case requests for findings of facts and conclusions of law, aud the court is directed to note in the margin the manner in which each proposition is disposed of and file or return the state- ment to the attorney presenting it. There is no requirement that the court shall incorpo- rate in its decision the disposition of those questions of law or fact, whether they are favorable or unfavorable to the party presenting them. Ihey are to be returned to the attorney and subsequently attached to the judgment roll. A trial court in making its decision finds such facts as it deems material to the proper disposition of the issues to be determined and on those facts bases its conclusions of law. These are the only facts required to be found in the decision. But the court may err in its judgment that the other facts proved in the case are immaterial and to afford the defeated party an opportunity to correct such an error the privilege is given to present requests to find,. Of course, it would do no harm if the facts so requested and found by the trial court were incorporated in the decision, but we see no necessity that they should be so incorporated. Sectiofl i68. — Report where Account has been Referred to Hear and Determine. Wheffr the surrogate tries an issue of fact he " must file in his office his decision in writing, which mttst state, separately, the facts found and the conclusions of law" (§ 2545) ; but there is no provision requiring a ttffiree's report to " state separately the facts found and the conclusions of law," except- ing section 1022, as amended. (1903 ch. 85.) Before the amendment of 1903, and while the so-called " short decision " was authorized by this section, it had been held by the Appel' late Division that the section applied to a referee appointed by Ch. 10, § 268, THE TRIAL OF ISSUES. 263 Report where Acount has been Referred to Hear and Determine. the siurogate to " hear and determine " the questions arising upon an accounting (Slatter of Woodward, 69 App. Div, 286, 74 Sup p. 755) ; and, under this decision, the section as amei\de(3 continues to be so applicable. Section 1022 — which, as it now stands, went into effect, September 1, 1903 — so far as it relates to the report of a ref' eree in a Surrogate's Court, is as follows : — The * <■ * report of a referee upon the trial of the whole issues of fact must state separately the facts found and the conclusions of law, and direct the decree to he entered thereon. * * * In a procecrUiir/ where the costs are in the discretion of the court the * * * report must award or deny costs, and if it awards costs it must designate the party to whom the costs to be taxed are awarded. (1903 ch. 85.) Undoubtedly a referee in the Surrogate's Court must comply with the requirements of this section, and " state separately the facts found and the conclusions of law"; but it has been held that where he makes a report with numbered paragraphs, in each one of which a specific objection is taken up and the facts in regard to it are stated and a conclusion reached, the requirement has been met substantially, and also that any de- fect in this respect is waived by a failure to object before the report is confirmed. {Matter of Schroeder, No. 2, 113 App. Div. 221,99 Sutjp. 174.) The direction as to the decree — which is the decree judici- ally settling the account as provided for in section 2551 — to be entered upon the report, like any other conclusion of law, is subject to confirmation or modification by the surrogate who should sign and enter the decree. Such a direction, there- fore, practically is but a legal eonclusion by the referee as to what decree should be entered on his report. Where, however, the report is not passed upon by the " surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice." (§ 2546; see sec. 257 ante.) Even with the modification of this provision, as recently made by the Court of Appeals (Matter of Clarl;, 1G8 IV. Y. 427), it still is operative in certain contingencies; and, it would seem that when a decree is " entered by any party interested in the pro- ceeding," upon a confirmation " as of course " under this pro- 264 PART I : GENERAL PROCEDURE. Ch. 10, § 369, Evidence Taken by Referee : When Filed with Report. vision, it should not only formally confirm the report but also judicially settle the account in conformity therewith. Whether a decree, entered under this provision, must be signed by the surrogate, or may be signed by the clerk, or how it shall be signed — if signed at all — is a matter inviting further judicial construction, or legislation. But Judge Martin, writ- ing for the Court of Appeals in Matter of Clark (168'2V. Y. 427), said; ^n^oubtless the surrogate could be compelled to enter a decree of confirmation if presented after the expiration of ninety days and beforahe had acted thereon?*^ The direction as to costs : In a special proceeding for an ac counting the costs are discretionary with the surrogate, and so the report, within the limitations prescribed by section 2561, should "award or deny costs, and if it awards costs it must designate the party to whom the costs to be taxed are awarded." (§ 1022.) And this is reasonable; for the referee is well advised concerning all those matters which should de- termine an award of costs when they are discretionary, inas- much as the trial has been before him. But the report, in this particular also, is subject to confirmation or modification by the surrogate; and so, an award of costs made thereby does not conflict with section 2561 which provides that " the surrogate, upon rendering a decree, may, in his discretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding " the amounts therein speci- fied. {See sec. 289 post.) Section 269. — Evidence Taken hy Referee : When Filed with Report. ..«r,s. .,->., . . Where a referee has been appointed " to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact; " whether with or without his opinion thereon, the evidence so taken must be returned with the report, in obedience to rule 30 of the General Rules of Practice. As we have seen already, such a reference is merely to aid the surro- gate who is really trying the issues in the proceeding and so must make the requisite decision. {See sec. 258 ante.) Ch. 10, § 369. THE TRIAL OF ISSUES. 365 Evidence Taken by Referee : When Filed witli Report. But where an account lias been rendered and a referee is ap- pointed " to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine; and to make a report thereon;" — /. e. on all such questions — there is no statutory provision requiring the evi- dence to be returned with the report; and the reason seems obvious because in this case, as we have seen already, the trial is had before the referee whose report must contain find- ings of fact and conclusions of law, as required by section 1022, and the subsequent action of the surrogate in passing upon such a report is only of an appellate nature. (See sec. 259 a7ite.) References in the Surrogate's Court are governed by the pro- vision of rule 30 of the General Rules of Practice that In references other than for the trial of the issues in an action * • * the testimony of tlie witnesses stiall be signed by them, and the report of the referee shall be filed with the testimony, « * « (see Rule 30.) This rule, as applied to proceedings in the Surrogate's Court, apparently excepts references, " for the trial of the issues " in an accounting, from its requirement as to the signing and filing of testimony. {Matter of Russell, 3 Dem. 377.) However, it has been the practice among surrogates to re- quire the evidence to be returned upon a reference " to hear and determine," as well as upon a reference " to take and re- port to the surrogate the evidence upon the facts ; " and this course should be pursued even though it may not be required by the letter of the statute or by any general rule of practice. Where the evidence is returned with the report, undoubtedly the surrogate has power to modify the report upon the facts, and, upon the evidence taken by the referee, himself determine any question presented upon the accounting {Blatter of Schaefer, 65 App. Div. 378, 73 Stipp. 57, aff'd 171 N. Y. 686; Hatter of Barefield, 177 N. Y. 387) ; but the real effect of such action is to transform a reference " to hear and determine " into a mere reference " to report the evidence with the referee's opinion thereon." Moreover the surrogate may in his discre- tion send the case back to the referee for further proof or a fuller report. {Matter of Schroeder, No. 1, 118 App. Div. 204, 99 Supp. 176.) 366 PART I : GENERAL PROCEDURE. Ch. 1Q, § 370, Compensation of referee. When the evidence has been returned to the surrogate, and so is befoi'e him wjien acting upon the report, there can be no subsequent settlement of the case bj/ the referee; for the par- ties cannot bring into the appellate court any record other than that upon which the surrogate made his decision. (Matter of Dietzel, 36 Ap-p. Div. 300, 55 Supp. 323.) Section 270. — Compensation of Referee. It is provided in section 2546, authorizing the appointment of a referee by the surrogate, that such a referee " is entitled to the same compensation as a referee appointed by the Su- preme Court, for the trial of an issue of fact in an action " (see sec. 2^yaiite) ; and there is also the following provision: § 2566. Fees of Othek Officees and Witnesses. — Each other officer, in- cluding a referee, and each witness, is entitiecl to the same fees, for his services and for travelling, as he is allowed for like services in the Supreme Court. (1880 ch. ITS.) The fees of a referee in the Supreme Court are regulated as follows : § 3296. Pees of Eefeeees. — A referee, in an action or a special proceeding hrought in a court of record, or in a special proceeding, taken as prescribed in title twelve of chapter sqrenteen of this act, is entitled to ten dollars for each day spent in the business of the reference ; nnlcss at or before the commence- ment of the trial or hearing, a different rate of compensation is fixed, by the consent of the parties, other than those in default for failure to appear or plead, manifested by an entry in the minutes of the referee, or otherwise in writing, or a smaller compensation is fixed by the court or judge in the order appointing him. (1896 eft. 90.) A stipulation fixing a different rate of compensation may be made by the attorneys for the parties. (Mark v. City of Buffalo, 87 N. Y. 184.) Such a stipulation made verbally at the commencement of the trial, and afterwards reduced to writing, meets the requirements; but the compensation must be fixed tlerclyy, and no change is effected where the stipula- tion provides merely that the referee may " charge such fees as he deems proper." ( Griggs v. Day, 135 7\^. Y. 469, overruling, Burt V. Oneida Community, 59 Eun 234, 12 8upp. 806, 36 St. Rep. 765.) So where the parties stipulated that the referee's compensation should be " left to be determined by the surro- gate upon the coming in of the final report without regard to statutory fees," it was held that the surrogate must fix the Ch. 10, § 271. THE TIIIAL OF ISSUES. 267 Same Subject : Collection of Fees. fees of the referee at the statutory rate (Blatter of Oilman, 10 St. Ecp. 184, 12 Civ. Pro. Hep. 179) ; for the statute, in the absence of a stipulation fi.riitff the compensation, is mandatory upon him. [Matter of Willett, 6 Dcm. 435, 2 Supp. 668, 17 St. Rep. 780 ; see N. Y. M. S. & L. Assn. v. Westchester F. Ins, Co., 98 App. Div. 285, 90 Supp. 710.) ■ The referee may charge for each day's attendance pursuant to appointment or adjournment even though nothing be done except to postpone the hearing {Jones v. Nevjton, 11 Supp. 510, 33 St. Rep. 823; Brush v. Kelsey, 47 App. Div. 270, 62 Supp. 214) ; but if the postponement has been made by a stipulation prior to the time fixed for the hearing, and the referee is notified so that he does not attend, the rule is otherwise. (Brush V. Kelsey, supra.) And where the attorneys stipulate that the compensation shall be a specific sum per diem " for every hearing '' the referee cannot charge for days, ui)on which appointments for hearings have been made, but when, because of adjournments by consent; no hearings have occurred. (Mead v. Tuckerman, 105 N. Y. 557.) Section 271. — Same Subject: Collection of Fees. As in the Supreme Court, so in the Surrogate's Court, a referee need not deliver his report without payment of his fees. As a general thing, the prevailing party, being moved by his own interest, will take up the report ; but if he fails to do so the referee may file it and so prevent a termination of the reference by notice under section 1019. Upon filing his report the referee may maintain an action for his fees (Little V. Lynch, 99 y. Y. 112) ; but the court cannot compel a party to ta£e up the report and pay the fees. (Morrow v. McBIahon, 71 App. Div. 171, 75 Supp. 534.) Where, however, objections have been filed to an account and it has been referred, the sur- I'ogate may tax the referee's fees and order their payment by the executor or administrator out of the estate. (Matter of Eurd, 6 Misc. 171, 26 Supp. 893, 31 AWt N. C. 109, s. c. as Matter of Ellis, 56 St. Rep. 694; and see Matter of Merry, 11 App. Div. 597, 42 Supp. 617.) I\Ioreover, if the referee shall file his report, without exacting his fees, ' provision may be made in the final order or decree for their payjnent. bj, such ' 868 PART I : GENERAL PROCEDURE. Ch. 10, § 372, Exeptions to Report. of the parties as may be found chargeable therefor, (Matter of Kraas, 4 Dem. 217.) Referees' fees in a special proceeding constitute a dishurse- mcnt to be adjusted by the surrogate — who is the taxing offlcer in the Surrogate's Court — and allowed in the decree as pro- vided by section 2559 ; and the number of days for which such fees are charged should be shown by aflldavit. If the fees of a referee shall be taxed at a sum less than the amount actually paid to him, he may be required to return the excess. (Duhrkop y. White, 13 App. Div. 293, 43 Supp. 190.) Section 272. — Exceptions to Report. It is a general practice in the Surrogate's Court to confirm a referee's report as of course " unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same " as allowed by rule 30 of the General Rules of Practice. Rule 8 of the Surrogate's Rules of New York county provides: When a referee's report shall he flled, together with the testimony taken be- fore him, slid report shall he couflrmed as of course, imless exceptions thereto shall be filed hy any party interested in the accounting or proceeding withip eight days after a written notice of such filing and a copy of such report shall have heen served upon the opposing- psrty; and in case exceptions shall be so filed, any party may bring on the hearing of said exceptions on eight days' notice' on any stated motion day of said Surrogate's Court. (Rule 8.) Rule 30 certainly applies to all references excepting refer- ences " to hear and determine " questions arising upon an accounting (Matter of Leffingwell, 30 Hun 528) ; but whether it applies to such references may be doubted, and seems not to have been decided definitely. (See Matter of Bedford, 30 Hun 551.) However, it is safe practice to file exceptions to the referee's report in every case, if its confirmation is to be opposed. But where the reference is " to hear and determine ", and an aggrieved party intends to appeal from the decree of the Surrogate's Court, entered upon the referee's report, sec- tion 994 also applies; and it provides that exceptions may be taken at any time before the expiration of ten days after service, upon the attorney for the exceptant, of a copy of the I re port of the re fejree and a written notice of the entry of the Ch. 10, § 373. THE TRIAL OF ISSUES. 269 Surrogate's Action on lieport of Referee to take Evidence. decree thereon — such exception, however, being limited " to a ruling upon a question of law." Section 992 iilso authorizes an exception to the ruling of a referee " upon a question of law, arising upon the trial of an issue of fact " ; and expressly provides that " an exception cannot be taken to a ruling, upon a question of fact." If the surrogate shall modify the report by himself making findings, upon questions of laio, exceptions thereto also should be taken by each party aggrieved ; but where, without disturb- ing the referee's findings of fact, the surrogate merely sustains an exception to a conclusion of law no further exception is necessary to review the decree entered thereon. [Matter of McAleenan, 53 App. Div. 193, 65 Bupp. 907, aff'd 165 N. Y. 645.) Section 273.— Surrogate's Action on Report of Referee to take Evidence. As already we have seen, a reference " to take and report to the surrogate the evidence", or, in a probate case in the county of New York, " to take and report the testimony " is in aid of the surrogate by whom the issues are being tried ; and, therefore, in such a case the surrogate — but not the referee — is required to make the decision containing a sepa- rate statement of his findings of fact and conclusions of law, precisely the same as where he himself takes the testimony, (^ee sec. 258 ante.) Where the referee, being directed to re- port the evidence with his opinion thereon, actuaPy makes a report with separate findings of fact and conclusions of law, it may be that by merely confirming it the surrogate adopts the- report as his own decision [Matter of Bettman, 65 App. Div. 229, 72 Supp. 728; Matter of Woodioard, 69 App. Div. 286, 7i Supp. 755) ; but it is a better practice for the surro- gate to follow the rule laid down in Matter of Yetter (44 App. Div. 404, 61 8upp. 175, aff'd 162 N. Y. 615), and, upon such reported evidence, make his own decision with separate find- ings of fact and conclusions of law as required by section 2545. If exceptions have been filed to such a report within eight days after notice of its filing, as allowed by rule 30 of the General Rules of Practice, it is the duty of the surrogate to 270 PART I ; GENERAL PROCEDURE. Ch. 10, § 274. Surrogate's Action on Report of Referee to Hear and Determine. pass upon them; and liis neglect or refusal to do so may lead to a reversal of liis order of confirmation and of the decree based thereon. {Matter of Bedford, 30 Hun 551.) But where no exceptions are filed, it has been held that the surrogate has no alternative and must confirm the report. (Matter of LeffltKjwell, 30 Hun 528.) We do not think, however, that the surrogate can be ousted of jurisdiction to act upon such a report, or to make his own decision upon the evidence sub- mitted therewith, simply because a party has neglected to file exceptions under the rul,e. (See Matter of Clark, 168 2V. Y. 427.) The strictness in matters of practice, that may be ap- propriate to actions, cannot be applied to proceedings in the Surrogate's Court; and if a surrogate, in the absence of ex- ceptions as allowed by rule 30 of the General Rules of Prac- tice, nevertheless examines the evidence submitted and makes his own decision — even though it be contrary to the conclu- sions or opinion ,of the referee — it is safe to say that his de- cree based thereon will not be reversed for the sole reason that the referee's report stood confirmed under the rule. If the referee merely reports the evidence without his opin- ion thereon — as in a probate case in the Surrogate's Court of New York county where an assistant has been directed " to take and report the testimony, but without authority to pass upon the issues involved therein " — the function of an excep- tion is not apparent; for the surrogate must try the case upon such evidence, and make a decision precisely as where the entire trial has been had before him. Where, however, such a referee has reported his opinion in the form of findings of fact and conclusions of law, it is un- doubtedly a general practice among surrogates to follow rule 30, and, where no exceptions have been filed, to confirm the report as of course and adopt the findings and conclusions of the referee as the decision of the surrogate. j Section 274. — Surrogate's Action on Report of Referee to Hear and Determine. Where, however, the reference is " to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine, and to make a Ch. 10, § 374, THE TRIAL OF ISSUES. 271 Surrogate's Action on Report of Referee to Hear nud Detertaine. repoli" thereon Kubject, liowever, to coniJnuation or modifica- tion by the surrogate" (§ li-j-iO; sec sec. 2^7 ante), the trial proceeds before the referee and not before the surrogate; and the report of the referee takes the place of the decision by the surrogate where a trial is had before /(-?'»!. {^Seesec. 2^9 ante.) But though such a report — unlike the report of a similar ref- eree in an action — is " subject to confirmation or modification," and should be " passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him," it is apparent that such action of the sur- rogate is appellate or supervisor!/, and that he neither need nor ought to make any decision with separate findings. (Mat- ter of Tetter, 44 App. Div. 404, 61 Siipp. 175, aff'd 162 N. Y. 615; Mutter of Bettman, 65 App. Div. 229, 72 Supp. 728.) A confirmation of the report is an approval of the referee's find- ings ; and an appeal from the decree entered thereon will pre- sent them for review (Matter of'Nilcs, il Hun 348, 14 St. Bep. 538) — if the requisite exceptions to the report have been filed as provided by section 994. The surrogate may reject a report and send it back to the referee with directions to pass upon any question of fact not covered by it (Matter of Baijer, 54 Hun 189, 7 Supp. 566, 26 St. Rep. 803; Matter of Scliroeder, Xo. 1, 11«3 App. Div. 204, 99 Supp. 176) ; or he may set it aside and send the account back to the same referee with directions to proceed anew tinder principles laid down in his opinion — in which event the whole matter is left in abeyance until the coming in of the further report, and a final order has been made thereon. (Matter of Post, 19 Sui>p. 18, 46 St. Rep. 129.) Moreover, without dis- turbing the findings of fact, the surrogate may reverse or modify the conclusions of laio deduced therefrom by the referee (Matter of Barefield, 177 N. Y. 387; Matter of May, 9 Supp. 785, 31 St. Rep. 50) ; and no exception is needed to enable the Appellate Court, upon appeal from the decree en- tered thereon, to review such action of the surrogate (Matter of McAleenan, 53 App. Div. 193, 65 Supp. 907, aff'd 165 N. Y. 645) ; or the surrogate may modify the report upon the facts, and, from the evidence submitted to the referee, himself de- termine any question presented upon the accounting. (Mat- 372 PART I : GENERAL PROCEDURE. Ch. 10, § 374. Surrogate's Action on Report of Referee to Hear and Determine. ter of Schaefer, 65 App. Div. 378, 73 Siipp. 57, aff'd 171 N. Y. 686.) In Matter of Bare field (177 N. Y. 387, 391) Chief Judge Parkee, writing for the Court of Appeals, said : The referee's report, therefore, is not final. His con- clusions must be deemed to be reported to the surrogate in aid of his decision and decree, Avhich should be founded upon the law as applied to the evidence taken before the referee. The decree is the first binding adjudication, and from it only can an appeal be taken. But this action of the surrogate, in reversing or modifying the report, is appellate or supervisory and not original; for there are not two primary trials — one by the referee and an- other by the surrogate — v/ith two sets of findings and of excep- tions. The referee should make his report with separate find- ings, numbering them properly; and, if exceptions are filed to any such finding, the surrogate upon the hearing will sustain or overrule them, or modify, confirm or reverse the finding, and his decree will show precisely what is the subject of further reviev/. {Hatter of Yettcr, 44 App. Div-. 404, 61 8upp. 175, aff'd 162 N. Y. 615.) Upon appeal from the decree, exceptions undSt section 994 should be filed to the report of the referee — as ihade, or as modified hy the surrogate; and the case upon appeal will con- tain Such exceptions; as well as any exceptions to the report, under rule 30 of the General Eules of Practice, and the surro- gate's rulings thereon, together with the very transcript of the testimony which was filed with the report and upon which any modifications of the referee's findings of fact have been based. This transcript cannot be changed on any settlement Of the case by either the referee or the siirrdgflte; for the parties must have before the appellate court the record which was before the surrogate when he made his decision. In this way the sur- rogate's action in passing upon the referee's report is brought up for review. {Matter of Diet~el, 36 App. Div. 300, s. c, as Dietzel v. Wchcv. 55 Supp. 32.3.) Where the reference is to hear and determine, the Surro- gate's Rules of New York county require the evidence to be Ch. 10, §§ 275, 276, THE TRIAL OF ISSUES. 273 Same Subject : Within what time — Reference in New York County. returned with the report, and, upon exceptions being filed, the surrogate considers the cyidence and reviews the findings of fact (see rule 8; Matter of AzzeU's Estate, 4 Swpp. 462, 17 8t. Rep. 800) ; but, upon such a review, the surrogate will not dis- turb the referee's findings of fact unless so clearly against the weight of evidence as to be without evidence to support them. (Matter of Bradley's Estate, 2 8upp. 751, 17 8t. Rep. 83G; Matter of Odell, 1 Co7t. 94, 4 Sitpp. 463, 18 St. Rep. 997.) In the Odell case Surrogate Ransom, in speaking of a reference to hear and determine, well said : The plain intent of the Legislature was to cast upon the referee judicial powers and responsibilities, and thus relieve the surrogate from any duty in the proceeding except to review his conclusions of law from facts estab- lished by the evidence. It was not contemplated that the referee should be an assistant to the surrogate act- ing simply ministerially. Section 275.— Same Subject : Within what Time. It is now provided in section 2546 that Unless a referee's report is passed upon and conflrmed, approved, modified or rejected by a surrogate witbin ninety days after it has been submitted to bim, it shall be deemed to IiaTO been coafin-.-.cd r.-s of course and a decree to tbat effect may be entered l)y any party interested in the proceeding upon two days' notice. (See sec. 257 ante.) However, in a case where a referee had been appointed to take and report the evidence upon the facts, but not to hear and determine, the Court of Appeals has held that the surrogate may act upon such a report even after the expiration of the ninety days, and until a decree of confirmation actually has been entered pursuant to a two days' notice; and that, during such time, he retaiXiS jurisdiction with power to take any proper action in the proceeding. (Matter of Clark, 168 N. Y. 427; Matter of Barefield, 177 N. Y. 387.) Section 276.-- Reference in New York County. In addition to those provisions applicable to all Surrogates' Courts section 25-lG authorizes the surrogate of the county of New York, on the written consent of all the parties appearing 374 PART I : GENERAL PROCEDURE. Cir. 10, § 377. Form : Order for Reference to Take Evidence. in a probate case, to appoint a referee, or, in his discretion, to direct an assistiutt to take and report the testimony, but with- out authority to pasr: r.pcn any Issues. These provisions require no especial comment; and, for the practice thereunder, reference is made to the Rules of the Sur- rogate's Court of Xew York county. It may be remarked,- however, that it has been held that such an assistant may be appointed without any consent of the parties, and that he has authority to rule upon the admissibility of evidence when ob- jected to (Matter of Allananii, 1 Co7i. 441, 5 Stipp. 196, 22 St. Rep. 885) ; and, also, that it is no objection to the examination of a witness by such an assistant that the witness is claimed to be an incompetent person. (Matter of Hutchinge, 16 8upp.- 36, 40 St. Rep. 916.) Section 277. — Form : Order of Reference to Take Evidence.- (Title of Proceeding.) The last ■will and testament of the above named deceased, having been heretofore admitted to probate in our Surrogate's Court, and letters testamentary thereon having been duly issued to X. Y., named therein as sole executor thereof; and the petition of verified the day of , 19.., wherein he alleges, among other things, that he is a creditor of the said deceased, and that the circumstances of the said X. Y. are such that they do not afford adequate security, to the creditors or per- sons interested, for the due administration of the estate, having been duly presented to our Surrogate's Court; and a citation thereon issued to said executor having been duly retui-ned; and the said executor having filed his answer denying the material allegations of said peti- tion, and specifically alleging that said is neither a creditor of the said , deceased, nor a person interested in said estate, {or otherwise state nature of proceeding, and issue of fact, ) Now, therefore, (on motion of Esq., attorney for said petitioner), I DO -HEREBY ORDER that it be referi'ed to , Esq,, who is hereby appointed a referee, to take and report to the surrogate the evidence upon the facts as to whether the said is a creditor of the said , deceased, as alleged in his peti- tion or otherwise (or otherwise state subject-matter of reference) ; and That the first hearing of this matter, before said referee, take place in his office in the city of , N. Y., on the day of Ch. 10, § 278. THE TRIAL OF ISSUES. 375 Form : Order for Reference to Examine Account, etc. next, at ten o'clock in the forenoon; and that said referee bring in his report before the undersigned surrogate of county on the .... day of , at 10 o'clock in the forenoon, which day is hereby appointed for hcarinr; the pcrtlcj liereto, at the surrogate's office in said city, on the confirmation of the report of said referee, without further notice. (Or, That the hearing he had before said referee, at such time and place in the city of as he shall appoint; and that he report thereon with all convenient speed.) Dated at , N. Y., the day of , 19. .. Surrogate. Section 278.— Form : Order for Reference to Examine Account, etc. (Title of Proceeding.) ...... ^ .. t , the executor of the last Will and testament of , late of the of .- deceased, having presented an account of his proceedings a'§ such executor (and as testamentary trustee under said will) for final settlement and having filed objections to said account. Now, therefore, (on motion of , Esq., attorney for said petitioner) I DO HEEEBT ORDER that it he, and it hereby is, referred to , Esq., who is hereby appointed referee, to examine the said account and to hear and determine all questions arising upon the settlement thereof, which the surrogate has power to determine; and to make a report thereon, subject, however, to confirmation 01' modification by the surrogate; (*) and That the first hearing of this matter be had before said referee at such time and place, in the city of , as he shall ap- point, (or, at the office of said referee at No .-, street in the of , N. Y., on the day of .-. , 19. ., at 10 o'clock in the forenoon of that day) ; and that he report thereon with all convenient speed; and I DO FURTHER ORDER that, ou the comiug in of such report, notice be given, to all parties who have appeared herein, of a motion to be made before the surrogate on the question of- confirming such report and for such other and further relief as may 6e proper. (If order limits reference, proceed from (*) as follows:) and That the first hearing of this matter, before said referee, take place at his office in th6' of , N. Y., on the day of , 19 ..., at 10 o'clock in the forenoon; and that such referee bring in his report herein before the surrogate on the day of 19. ., at 10 o'clock in the forenoon, which last men- tioned day is hereby appointed for the hearing of the parties hereto. 276 PART 1 : GENERAL PROCEDURE. Cri. 10, § 379. Trial by jury. at the surrogate's office In said city, on the question of confirming the report of said referee, and without further notice. Dated at ^., N. Y., the day of 19. .. V ••••.•^ •••> r5, Surrogate. Section 279.— Trial by Jury. There is no trial by jury in the Surrogate's Court; but in three cases — and only three — issues of fact, in a Special pro- ceeding pending or originating in the Surrogate's Court, may be tried by a jury in the Supreme Court or County Court, as follows : (1) In a special proceeding to dispose of a decedent's real property for the payment of his debts and funeral ex- penses, the surrogate may " make ati Ordef directing the trial by jtiry, at a trial term of the Supreme Court to be held within the county, or in the County Court of the fibunty, of any controverted question of fact" arising therein. (§ 2547.) (2) Where the decree of the Surrogate's Court, made upon a petition to admit a will to probate or to revoke the probate of a will, has been reversed or modified upon a question of faist the appellate court must " make an order, directing the trial, by a jury, of the material questions of fact, arising upon the issues between the parties," to take place " either at a trial term of the Supreme Court specified in the order, or in the County Court of the county of the surrogate." (§ 2588.) (3) A surrogate Of the county of New York niay transfer " to the Supreme Court any special proceeditig for the probate of a will pending before him, or in the cdurt Over which he presides, and thereupon tbe issues of fact arising in such pro- ceeding shall be heard and determined by th^ Supreme Court." (§ 2547.) Provision also is made by section 2653-a for th^ deter- mination of the validity of a will, hy an action in the Su- preme Court triable by jury, after such tcitl has ieen admitted to prolate by a Surrogate's Court; but tte procedure under this section more appropriately belongs tci a work on general practice. The Code sections regulating the jury trial, where the issues arise in a.proceding originating in the Surrogate's Court, are these: Ch. 10, § 279. THE TRIAL OF ISSUES. 277 Trial by jury, § 2547. Trial by .Tury. — The surrogate may. in his discretion, malte an order directing the trial by jury, at a trial term of the Supreme Court to be held within the county, or in the County Court of the county, of any controverted question of fact arising in a special proceeding for the disposition of the real Iiroperty uf a decedent, as prescribed in title fifth of this chapter. The order inuct state distinctly and plainly each question of fact to be tried, and it is the only authority needed for ll.c trial. Either of the surrogates of the county of New York may. In his discretion, malie an order Iransferring to the Supreme Court any special proceeding for the probate of a will pending before him, or in the court over which he presides, and Ihoreiii'.ou the issues of fact arising in such proceeding shall be heard anS tlelcrmined by the Supreme Court. The order transferring such proceeding is tlie only authority necessary for the trial in the Supreme Court of such issues of fact. Such issues of fact shall be tried by Jury, and the verdict can be reviev,-ed only by a motion for a new trial upOn the minutes of the judge. Such luolion must bo made within ten days after the verdict is rendered. A new trial may bo granted upon exceptions, or becah'se the verdict was rendered upon insufliciept evidence or is against the evidence" or the wajght of evidence. An appeal lies to the Appellate Division of the Supreme Court from the order granting or refusing a new trial. An appeal must be taken by serving written notice of appeal upon the cieri: of the court, afid upon the attorney for the respondent, within ten days after the service upon the attorney for the appellant of the order appealed from, and of written notice of the entry thereof. The appeal shall be heard upon a case containing all the evidence ; and an error in the admission or exclusion of evidence, or in any other ruling or direc- tion of the judge upon the trial may, in the discretion of the court, be dis- "Pgarded if substantial justice does not require that there should be a new trial. If a motion to set aside the verdict be not made, or if at the termination of the proceedings for its review, the verdict is sustained, the Supreme Court shall certify to the Surrogate's Court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the Surro- gate's Court. The original will shall be returned to the Surrogate's Court at the time the verdict is certified thereto. The costs shall be taxed in the Surro- gate's Court, and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate. (1895 ch. 946.) § 2588. Award of Jury Trial Upon Reversal in Probath Cases. — Where the reversal or modification of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was talcen from a decree made upon a petition to admit a will to probate, or to revoke the pro- bate of a will, make an order, directing the trial, by a jury, of the material questions of fact, arising upon the issues between the parties. Such an order must state, distinctly and plainly, the questions of fact to be tried ; a'nd must direct the trial to take place, either at a trial term of the Supreme Court specified in the order; or in the County Court of the county of the surrogate. After the trial, a new trial may be granted, as prescribed In section two thousand five hundred and forty-eight of this act. (1895 ch. 946.) CHAPTER XI. CONCERNING COSTS. | I Seotion 280. Difference between Costs and Allowances. 281. General Code Provisions not Applicable. 282. Costs: When and how Awarded, and How Payable. 283. When Awarded as of Right. 284. The Discretion of the Surrogate. 285. Same Subject: Costs against Executor, etc.. Personally. 286. Same Subject: Costs against other Parties Personally. 287. Costs Payable out of Estate to Unsuccessful Party: Probate Cases. 288. Unsuccessful Contest on Accounting. 289. Amount of Costs. 290. Costs to Special Guardian. 291. Disbursements. 292. Costs upon a Motion. 293. Costs are Awarded to Parties. 294. Costs to be Fixed by the Surrogate. 295. No Imprisonment for Non-payment of Costs. 296. Costs upon Appeal. 297. Form: Bill of Costs and Notice of Taxation. 298. Costs against Executors or Administrators: When Awarded in an Action. Section 280.— Difference between Costs and Allowances. At the threshold of this subject the difference should be noted between taxahle costs and these allowances which may be made to executors or administrators because of the em- ployment of counsel by them in the administration of their trusts. This employment is a personal contract 61 the 'V'>-^»aIj>v- ^ executor or administrator, and does not bind the estate ^rQ>>>JL/^. m">^M/ . {Parker v. Day, 155 W. Y. 383; Matter of Sayles, 57 Misc. 524, J^Oo". (s. Costs to Special Guardian^Disburscments. 219, 77 Supp. 2G9.) In Mattel- of Iiujraham^ however, the sur- rogate was of opinion, that, in the exercise of such discretion, those rules which regulate the allowance of costs in an action at law against the executor or administrator should be fol- lowed. Section 290. — Costs to Special Guardian. The services of a special guardian are rendered in behalf of Ids Kurd; and there is no reason why the general estate or fund should be burdened with appropriations for his compen- sation. [See sec. 141 ante.) Indeed it is settled that no allowance, paj'able out of the general estate, can be made to a special guardian in excess of the costs authorized hy section 2561 — not even wliare such guardian has been appointed by the Surrogate's Court on its own motion (Matter of Rohinson, 160 N. Y. 448 £ 602 ; Matter of Dodge, 40 Eun 443 ; Matter of Euppaner, 7 Ajjp. Div. 11, 39 Siipp. 763; Matter of O'Keeffe, 80 App. Div. 513, 81 Bupp. 118; Forster v. Kane, 1 Dem. 67; Matter of Tracy, 18 AbVt N. C. 2-12) ; and that any additional compensation must come from the infant or his estate. (Mat- ter of Will of Budlong, 100 N. Y. 203 ; Matter of Farmers' Loan cC- Trust Co., 49 Ajjp. Div. 1, 63 Siipp. 227; see Union Tns'.'Co. v. TaiiRensselaer, 4 Paige 85; Oott v. Cool; 7 Paige 521.) No costs should be allowed to a special guardian for services rendered after the Court of Appeals has decided that the in- fant has no interest in the estate (Matter of James, 78 Hun 121, 28 Supth 992, 60 St. Rep. 184, aff'd 146 N. Y. 78) ; and where a special guardian institutes a proceeding to propound and construe a will, and it is adjudged that the infant has no interest in the estate, he should be allowed no compensation beyond taxable costs. (Bindrim v. Ullrich, 64 App. Div. 444, 72 Supp. 239. ) Moreover, if the appellate court does not award costs to a special guardian the surrogate has no power to allow him anything as costs for his services on the appeal. (Schell v. Hewitt, 1 Deni. 249, 4 Civ. Pro. Rep. 57, 65 How. Pr. 187.) Section 291.— Disbursements. Section 2559 provides that "costs, when awarded by a de- Ch. 1^, § 393. CONCERNING COSTS. 393 Costs upon a Motion. cree, include all disbursements of the party, to whom they are awarded, which may be taxed in the Supreme Court." The disbursements, which are taxable in the Supreme Court, will be found in the following section : § 3256. DiSEunSEMENTS TO BE INCLUDED IN BiLL OF CosTS. — A party to whom costs are awarded in an action is entitled to include In his bill of costs his necessary disbursements as follows : The legal fees of witnesses and of referees and other officers; the reasonable compensation of commissioners taking depositions ; the legal fees for publication where publication is directed pursuant to law ; the legal fees paid for a certi- fied copy of a deposition, or other paper, recorded or filed in any public office, necessarily used or obtained for use on the trial ; copies of opinions and charges of jud,^os ; the reasonable expenses of printing the papers for a hearing, when required by a rule of the court ; prospecMve charges for the expenses o^ entering and docketing the judgment ; and the sheritE's fees for receiving and returning one execution thereon, including the search for property, and such other reasonable and necessary er-cponscs as are taxable, according to the course and practice of the. court, or by cicpress provision of law. Searches affecting property situate in any county in which the office pf county clerk or register is a salaried one, v?hen made and certified to by tit!^ iusurauce, abstract or searching comp.-.nies, ovz-'^'-'-sti and doing business under the laws of this .""jtate, may ba used in all actions or special proceedings in which ofTicial searches may be used, in place of and with the same legal effect as such official searches, and the expenses of searches so made by said com- panies shall be taxable at rates not exceeding the cost of similar official searches. (1895 ch. 331.)' It is also provided by section 2566 applying to Surrogates' Courts and excepting from its provisions an appraiser — whose fees are fixed by section 2565 — that " each other ofiQcer, including a referee, and each witness, is entitled to the same fees, for his services and for traveling, as he is allowed for like services in the Supreme Court." (See sec. 270 ante.) Section 292. — Costs upon a Motion. It is provided in section 2556 that an order of the Surro- gate's Court — as distinguished from a decree — " may be en- forced in like mariner as a similar order, made by the Supreme Court in an action ; and the costs are the same as upon such an order, and may be collected in like manner." {See sec. 335 post.) In an action in the Supreme Court ^h application for an or- der is a motion (§ 768) ; and motion costs, so-called — being the costs " upon such an order " — may be " fixed by the court or judge, not exceeding ten dollars, besides necessary disburse- ments for printing and referee's fees." (§ 3251 sub. 3.) This 894 PART I : GENERAL PROCEDURE. Ch. ll § 293, '/ Costs are awarded to Parties. is the maximum amount that can be allowed by the surrogate as motion costs in any proceeding in his court. {Stokes V. Dale, 1 Dem. 260; Pease v. Egan, 3 Dem. 320.) The payment of motion cost^ cannot be enforced by contempt proceedings (^ee sec. 335 j}ost) ; but they may be collected in like manner as similar costs awarded in an action by an order of the Supreme Court. (§ 2556.) The reference is to section 779, which provides, among other things, that the collection of motion costs awarded in an order may be enforced by execu- tion. {Matter of Lippincott, 5 Dem. 299.) The section is as follows : § V79. Motion Costs^ Collection of. — Where costs oJ a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose hy the order, or if no time is so fixed, within ten days after (lie service of a copy of the order, an execution against the personal pi'operly only of the party re':"!red to ffay the sazie, nay be issued by any party cu' person to whom the said costs or sum of money is made payable by said order, or in case permission of the court shall be first obtained by any party or person having an interest in compelling payment thereof, which exe- cution shall be in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property ; and all proceedings on the part of the party required to pay the same, except to review or vacate tlie order, are stayed without further direction of the court, until the payment thereof. But the adverse party may, at his election, waive tine stay of proceedings. Where the order directs that the cost of a motion abide the event of the action, or where costs of a motion, awarded by an order, have not been col- lected when final judgment is entered, they may be taxed as part of the costs of the action or set off against costs awarded to the adverse party, as the case requires. But nothing herein contained shall be so construed as to relieve a party or person from punishment as for contempt of court for disobedience to an order in any case when the remedy of enforcement by such proceedings now exist. (1884 eft. 181.) It has been held that the provision, that " all proceedings on the part of the party required to pay the same, except to re- view or vacate the order, are stayed without further direction of the court, until the payment thereof," does not apply to the Surrogate's Court. {Scofield v. Adriance. 2 Dem. 486.) Unless specifically allowed, dishiirsements are not included in motion costs. {Cassidj/ v. McFarland, 139 N. Y. 201, 208; Matter of Steenelcen, 58 App. Div. 85, s. c, as Matter of "Bolte, 68 Supp. 444, 9 A. C. 413.) Section 293.— Costs are awarded to Parties. ' Costs are awarded to parties and not to their attorneys or Ch. \j, § 394. CONCEKNING COSTS. 295 Cost3 to be Fixed by the Surrogate. counsel (Deviti v. Patchin, 26 N. Y, 441; Wilcox v. Smith, 26 Barb. :m>; Mattjr of Welling, 5J App, Div.. 355, 64 8upp. 1025; Matter of Wright, 121 App, Div. 581, 106 Supp. 369; Motier o/ Aaron, 5 />e»i. y('>2, 7 St. Rep. 735; DuBois v. Brown, 1 Z)em, 329, s, c, i/.S' Mutter of Brotcn, 65 ffoit? Pr. 461) ; and the surro- gate lias no power to adjust the compensation of counsel op make it paj'able out of a decedent's estate, nor to direct an executor or other trustee to pay for the services of his attorney or counsel. (Estate of Withers, 2 Civ. Pro. Rep. {Browne) 162; Walton v. Hoirard, 1 Dein. 103.) The contracts of exec- utors and other trustees for services to be rendered are their personal eontracts and do not bind the estate {Parker v. Day, 155 \. Y, .''S-i) ■ and the surrogate has no authority to make a decree, jn favor of attorneys or counsel and against the estate or the executors or trustees as such, directing payment for their sei-viccs. {Seainaii v. V/hitchcdd, 78 Zv". Y. 308.) Never- theless it has been held under former Code section 66 {Judici- ary Lai:--, §§ 474 cC- 475) that the Surrogate's Court has power to determine the value of services rendered by an attorney to executors, and to charge the same as a lien upon the estate; and, to that end, to appoint a referee to take testimony and re- port the value of such services. {Matter of Smith, 111 App, Div. 23, s. o„ as Matter of Bender, 97 Supp. 171.) This doc- trine is pleasing to the profession, no doubt; but, on principle, it seems opposed by decisions in the Court of Appeals and can- not be relied upon, as firmly established, until confirmed by the court of last resort. Section 294.— Costs to be Fixed by the Surrogate. It is provided in section 2561, that " the surrogate, upon rendering a decree, may, in his discretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding" certain amounts therein specified ; and it is provided in section 2559 that " the sum allowed for costs must he fixed by the surrogate, and inserted in the decree." (/See sees. 289 ig 282 an*e.) Upon an application to a Surrogate's Court for the allow- ance of costs, a bill of costs and disbursements, including 296 PART I : GENERAL PROCEDURE. Ch. 11, § 295. > No Imprisonment for Non-payment of Costs. stenographer's fees, sliould be presented and notice of taxation be given as in the Supreme Court. (Blatter of DuBois v. Brown, 1 Dem. 317 & 329; s. c, as Matter of Brown, 65 Mow. Pr. 461.) The procedure in New Yorli county upon a taxation of costs may be adopted to advantage in other jurisdictions. It is prescribed by rule 22, of the Surrogate's Rules of that county : Whenever a party to a decree shall deem himself entitled to costs, the same win he consiilfred and determined by the surrogate, on two days' notice of adjustment, to be served upon the opposing party, with the items of costs and disbursements to which the party may deem himself entitled at the time of the settlement of the decree, irhich disbursements shall be duly verified, both as to their amount and necessity, the disbursements for referee and stenographer's tees being sustained by their affidavits or detailed proof ; and at the same time, and on lilte notice, liie Surrogate will pass upon any additional allowance to bo made to an executor, administrator, guardian or testamentary trustee, upon a judicial settlement of his account: wliich notice of adjustment and allowance shall be accompanied hy an afBdavit, setting forth the number of days neces- sarily occupied in the hearing or trial, the number necessarily occupied In preparing the account for settlement, and in the preparation for the trial, the time occupied on each day in the rendition of the services, and their nature and extent in detail. In case such trial shall have been had before a referee, the time necessarily occupied in such trial before him may be shown by a certificate of such referee. The affidavit as to disbursements, time engaged in trial, and in preparing the account and for trial, may be controverted by affidavit. (Rule 22.) Where costs are within the discretion of the surrogate, if the amounts fixed by him are warranted by the affidavits and other inform ntiou upon which the allowance is based, the Ap- pellate Division will hesitate to interfere even though it may appear that such discretion has not been exercised wisely in all respects. {.Matter of Richmond, 63 App. Div. 488, 71 Supp. 795; and see Matter of Gollamer, 42 Hun 651, 5 St. Bep. 196.) Section 295. — No Imprisonment for Non-payment of Costs. The payment of costs cannot be enforced by contempt pro- ceedings no matter whether awarded by a decree (see sec. 320 post), or allowed in an order (see sec. 335 post), except as authorized by former section 15 of the Code now re-enacted in section 20 of the (^ivil Rights Law (1909 ch. 14; see Matter of Humfreville, 154 N. Y. 115; Matter of Banning, 108 App. Div. 12, 95 Supp. 467) ; but they may be collected by execution. Ch. 11, § 296. CONCERNING COSTS. 297 , -_._ :-- Costs upon"Sppeai. J^ .^ (Matter of Hirsch, 185 N. T. 598; Matter of Lippincott, 5 Dem. 299.) Section 396.— Costs upon Appeal, It is provided in section 2560 tliat '' tlie costs of an appeal, where tliey are awarded in a Hnrrogalc's Court, are the same as if they were awarded in the Supreme Court." (See gee. 289 ante.) This sentence is ambiguous; for "the, costs of an appeal '' never are awarded in the Surrogate's Court. Prob- ably the meaning is, that, where costs of an appeal are awarded in a special proceeding in the Surrogate's Court, they are the same as if the special proceeding were in the Supreme Court, (Walsh V. Van Allen, 3G Hun 629.) The following section applies to the Surrogate's Court (Mat- ter of Babcoclc, 86 App. Dii: 563, 83 Supp. 1020) : § 3240. Costs ; in a SpiiCiAi, ITuOceedixu. — Costs iu a special pi-oceeding, instituted in a court of record, or upon an appeal iu a special proceeding, talcen to a court of record, wltcrc tlic costs tliercof are not .specially regulated in tliis act, may be awarded to any party, in the discretion of tlie court, at the rates allowed for similar services, iu an action brought in the same court, or an appeal from a judgment taken to the same court', and in lil $ " satisfaction of decree $ " witness fees v ,. ,.$ Total disbursements $ Total costs and disbursements $ soo PART I : GENERAL PROCEDURE. Ch. 11, §$977- Porm : Bill of Costs and Notice of Taxation. {Affldavit as to disbursements.) (Venue.) being duly sworn, says: that he is the attorney anA counsel for in the above entitled special proceeding which was instituted to (state purpose); that he has conducted the same to a final decree therein; and that the foregoing disbursements actually have been made or incurred, or will be necessarily incurred, therein by or in behalf of said , according to the best of deponent's knowledge, information and belief; that said disburse- ments are correctly stated and were necessarily in this proceeding, and should be allowed by the surrogate in fixing and determining the costs herein. (Jurat.) (.8ignature.y. (Affldavit for allowance.) (Venue.) being duly sworn, says: that he is the attornej and counsel for in the above entitled special proceed- ing which was instituted by , executor of the will of , deceased, {or, administrator, etc., or, guardian, etc., or, testamentary trustee etc:) for a judicial settlement of his account; and that to the best of deponent's knowledge, information and belief, more than .... days were necessarily occupied by him, (or, by hia clerks but under his supervision and direction,) in preparing the ac- count of said executor (or, administrator or, guardian or, testamentary trustee) for judicial settlement. (And if there was a contest, add: and otherwise preparing for trial and in the trial itself.) (Jurat.) (Sigiidt'U/re.y (Affldavit as to vAtnesses.y (,Venue.) ......'. being duly sworn, says: that he fs the attorney for in the above entitled special proceeding which was instituted to (state purpose) ; that an issue of fact was raised therein upon the answer (or, objections) of and that said Issue subsequently was brought to trial before the surrogate at his Office ill the city of N. Y., on the day of 19. .. Deponent further says that each of the following persons attended upon said trial pursuant to a subpcena, or upon the special request of this deponent, as a witness for said .' the number of Bays set opposite their respective names, to-wit: Ch, 11, § 297. CONCERNING COSTS. 301 Form : Bill of Costs and Notice of Taxation. Name. Residence. Miles from sur- rogate's office. Miles traveled No. of days. And deponent further says that, as he is informed and verily believes, the residences of said witnesses respectively; the distance therefrom, according to the usual traveled route, to said surrogate's office and the number of miles they severally traveled, according to the usual traveled route, for the purpose of getting to the place of trial and returning therefrom, are hereinbefore correctly stated and set -forth opposite their respective names; and that each and every of said persons was a neces- sary and material witness in behalf of said , on the trial of this speciW proceeding. (Jurat.) (Signature.) (Notice of Taxation.) (Title of Proceeding.) Take notice, that the itemized bill of costs including disbursements, of which a copy hereto is annexed will be presented by me to the surrogate of county, at the surrogate's office in the city of , N. Y., on the day of , 19. ., at ten o'clock In the forenoon of that day, and an application then and there will be made for its settlement and allowance, and that the sums allowed for costs be fixed by the surrogate and inserted in the decree herein. (If proceeding be an accounting, add: and that, at the same time and place, an application also will be made for an additional allowance as author- ized by section 2562 of the Code of Civil Procedure.) Dated at , N. Y., the day of ., 1'9. .. To , Attorney for , Office and P. O. address. No. Street, . ,.„ N, y. Attorney for A Where the surrogate has adopted a special rule regulating applications for costs and allowances, or their taxation, the 303 PART I : GENERAL PROCEDURE. Ch. 11, § ; Costs Against Executors or Admiuistrators : When Awarded in an Action. proposed bill of co^its, affidavits, notices, etc., will be made accordingly. In New York conn ty the matter is regulated by mle 22 of the Surrogate's Rules. {See sec. 2g/[ ante.) Section 298 Costs Against Executors or Administrators : When Awarded in an Action. Although not strictly within the scope of this treatise, it may be serviceable in this connection to notice the law regu- lating the award of costs against an executor or administrator who has unsuccessfully prosecuted or defended an action or proceeding to collect a demand in favor of or against the es- tate. The relevant statutory provisions are these: § 3246. Costs ; by ok Again.st an BxecutcRj etc. — In an action, brought by or against an executoi' or administrator, in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or to be sued, costs must be awarded, as in an action by or against a person, prosecuting or defending in his own right, except as otherwise pre- scribed in sections 18,35 and 1S.')6 of this act ; but they are exclusively charge- able upon, and collectible from the estate, fund, or person represented, unless the couvt directs them to be paid, by the party personally, for mismanagement or bad faith in the prosecution or defense of the action. (1880 ch. 178.) § 1835. Costs ; How Awaedbd. — Where a Judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section. (1880 ch. 178.) § 1836. Id. ; When Awa]ided. — Where it appears in a case specified in the last section, that the plaintiff's demand was presented within the time limited by a notice published as prescribed by law, requiring creditors to present their claims and that the payment thereof was unreasonably resisted o,r neglected, or that the defendant did not file the consent provided in section 1822 at least ten days before the expiration of six months from the rejection thereof the court may award costs against the executor or administrator to be collected either out of his individual property or out of the property of the decedent as the court directs, having reference to the facts which appear upon the trial. Where the .action is brought in the Supreme Court, or any County Court, the facts muse be certified by the judge or referee before whom the trial took place. (1906 ch. 60.) § •1822. Limitation of Action by Cbeditoe on Claims Rejected, etc. — ■ Where an executor or administrator disputes or rejects a claim against the estate of a decedent, exhibited to him, either before or after the commence- ment of the publication of a notice requiring the presentation of claims, as prescribed by law, unless a written consent shall be filed by the respective parties with the surrogale that said claim may be heard and determined by him upon the Judicial settlement of the accounts of said executor or adminis- trator as provided by section 2743, the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due ; in default whereof he, and all the persons claiming under him are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent's property. (1895 ch. 595.) Ch. 11, § 298. CONCERNING COSTS. 303 Costs Against Executors or Administrators When Awarded iu itu Action. There are also the following j^rovisions, in section 2718 en- titled "Ascertainment of debts,'' concerning claims against the decedent ; If the executor or admini^tiator douT)ts tlie .lustice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy ta one or more disinterested persons, to be approTed hy the surrogate. On filing such asrccment and approval in the ofllce of the clerk of the Supreme Court in the county in which the parties or either of them reside, an order shall lie entered Ijy the clerk referring the matter in con- troversy to the person or persons so selected. On the entry of such order the proceeding shall become an action In the Supreme Court. The same pro- ceedings shall he had in all respects, the referees shall have the same powers, he entitled to the same compensation, and siib.iect to the same control as if the reference had been made in an action in which such court might, by law, direct a reference. In determining the question of costs the referee shall be governed hy sec- tions 1S35 and 1830 of this act. .ludgment may be entered on the report of the referee and such judgment shall he valid and effectual in all respects as If the same had been rendered in a suit commenced hy the ordinary process, and the practice on appeal therefrom shall be the same as in other civil ac- tions. (1893 cTi. 686; see sec. post) As a reference under this section converts the proceeding into " an action in the Supreme Court," it is subject to the rules regulating costs where such an action has been referred. (Brainerd v. DeGraef, 29 Misc. 560, 61 Supp. 953; OMd see Hustis V. Aldridge, 144 y. Y. 508.) It will be observed, how- ever, that this reference is authorized where the executor or administrator only " doubts the justice " of a claim rather than where he disputes or rejects it (Matter of Eichman, 33 Misc. 322, 68 Supp. 636) ; but, in actual practice, disputed and rejected claims often are referred under this section. [See Fowler v. Hebbard, 40 yl/jyj. Div. 108, 57 Supp. 531; Matter of Raah, 47 Ayp. Div. 33, 62 Supp. 322; Lamphere v. Lamphere, 54 App. Dk: 17, 66 Supp. 270.) These several Code sections above cited are authority for the following propositions regulating costs where an executor, or administrator, as such, is a defeated party to an action, viz: First : Where the executor or administrator is plaintiff: If the demand sued upon arose in the decedent's lifetime, costs are awarded as though the action had been brought by the plaintiff " prosecuting in his own right" ; but such costs " are exclusively chargeable upon and collectible " from the estate, unless the court directs them to be paid, by the executor or administrator personally, " for mismanagement or bad faith in 804 ■' PART I : GENERAL PROCEDURE. Ch, 11, § 398, Costs Against Executors or Administrators : Wlien Awavdeci in an Action. the prosecution or defense of the action," (§ 3246; Dean v. Roseloom. 37 Hun 310; Spencer v. Strait. 40 Hmi 463; Hughes V. Cuming. 63 App, Div. 303, 71 Supp. 599.) And if the judg- ment charges the plaintiff with costs in a representative ca- pacity it impliedly determines that he is not liable individually. {Hone V. DePeyster, 106 N. Y. 645.) Second: Where the executor or administrator is plaintiff: If the demand sued upon concerns the estate, but arose out of a transaction occurring after the decedent's death, even though the plaintiff prosecutes the action in his representative capa- city, yet, for the purpose of costs, it is deemed to be brought by him individuaUy, and, if he be un,?uccessful, costs may be taxed against him personally without application to the court,, {Bucldand v. Gallup, 105 ,A'. Y. 453; Bingham v. Marine Nat. Bank, 112 y. Y. 661, 2 SiU. Ct. of App. Rep. 137, 141; Mullen V. Guinn, 88 Hun 128, 34 Supp. 625, 68 St. Rep. 680; Dunphij v. Callahan, 126 App. Div. 11, 110 Siipp. 179.) Third: Where the executor or administrator is defendant: — If the demand sued upon be a claim against the estate, arising out of a transaction with the decedent himself or out of some act or omission of his, no costs against the representative, either personally or payable out of the estate, can be allowed except as authorized by section 1836; and, in any event, there must be a certificate of the trial judge or referee show- ing the facts upon which the award is based. {Matson v. Abbey, 141 ^'. Y. 179; 3Iattcr of Raab, 47 App. Div. 33, 62 Supp. 322; Scheu v. Blum, 119 App. Div. 825, 104 Supp. 887.) But if the cause of action arose ou!: of a transaction subse- quent to dieoedeni's death, even though it concerns the estate, the transaction necessarily is that of the executor or adminis- trator in hih: indiridual capacity; and costs may be taxed against him peisonally. (Rooncy v. Bodkin, 93 App. Div. 431, S7 Supp. 800.) Under section 1836 an executor or administrator does not unreasonably resist the payment of a claim, where, in good faith and through one trial only, he defends an action to col- lect it; and if, upon his appeal, a new trial be granted the first trial is reclioned as having been no trial at all. (Benjamin X. yer Nooy, 168 N. Y. 578.) CHAPTER XII. DECREES AND ORDERS. Section 299. Definitions and Distinctions. 300. Same Subject: Special Proceeding. 301. Surrogate's Decree: Collateral Attack. 302. Same Subject: Some Statutory Provisions. 303. Decrees and Orders: How Signed. 304. Form of Order or Decree. 305. Orders and Decrees to be Recorded. 306. Same Subject: Decree Settling an Account. 307. Decree or Order: Evidence of Assets. 308. Decree Directing Payment of Money. 309. Same Subject: How Enforced by Execution: When by Action. 310. Same Subject: Leave to Issue Execution: "When Satisfac- tion of Decree Presumed. 311. Supplementary Proceedings. 312. Form: Transcript of Decree for .Docket in County Clerk's Office. 313. Form: Execution on Decree Docketed. 314. Form: Affidavit for Leave to Issue Execution after Five Tears. 315. Form: Order to Show Cause. 316. Form: Order for Leave to Issue Execution after Five' Years. 317. Enforcement of Decree by Contempt Proceedings.' 318. Contempt Proceedings Generally. 319. contempt Proceedings against Executor or Administrator for Debt to Decedent. 320. Decree for Costs not Enforceable by Contempt Pro- ceedings. 321; Execution to Precede Contempt Proceedings. 322. Practice in Contempt Proceedings. 323. Same Subject: Order to Show Cause or Warrant to Attach Offender. 324.- Form: Affidavits for Order to Show Cause. 325. Same Subject: Order to Show Cause. 326. Form: Order to Show Cause. 327. Same Subject: Service of Order to Show Cause. 328. Same Subject: Return of Order to Show Cause. 329. Same Subject: Proceedings upon Return of Order. 330. Form;. Order Punishing for Contempt. 305 SOQ "^ PAET I : GENERAL PROCEDURE. Ch. 13, § 299. Definitions and Distinctions. Sectiok 331. Ciontenipt Proceedings under Warrant of Attachment. 332. When Court may Release Imprisoned Delinquent. 333. Appeal: Stay of Proceedings thereon. 334. Enforcement of Decree by Action on Official Bond. 335. Intermediate Order: How Enforced. 33C. Same Subject: Order Enforced by Contempt Proceedings. 337. Authority of Surrogate's Court over its Decrees and Orders. 338. Same Subject: Limitation upon Surrogate's Powers: None as to Time. 339. Same Subject: Unauthorized Order or Decree. 340. Same Subject: Who may Apply to open Decree. 341. Proceedings to open Decree or Order. 342. Enforcement of Decree by Criminal Proceedings. Section 299. — Definitions and Distinctions. § 2550. IiEnxiTiox OF " FixAL OnoKR ■" and " Deckee." — (The final de- termination of Hic> I'iglils of tlu- parties to a special proceeding in a Surro- gate's Oo-art, is styled, inditCercntiy, a final order, or a decree. (1880 ch. 178.) § 2556. Defixitiox of ■■ Oudep. " ; How Exfobced. — A direction of a Surro- g:ate's Court, madi- or entered in writing, and not included in a decree, is styled an order. Jt m.i-- te enfni'ccd in like manner as a similar order, made hj the Supreme Court in an action ; and the costs are the same as upon such an order, and may ts collected in like manner. (1880 oft. 178.) In his note to section 2550 Mr. Throop said, The word, " decree " is now universally employed, in treating of a Surrogate's Court, as the synonym of " judg- ment " Avlien treating of a court of common law jurisdic- , tion ; and there is no reason for compelling, by legisla- tion, a change in that respect. But various provisions of this act, which relate generally to "final orders "in special proceedings, are applicable to proceedings in Sur- rogate's Courts. lience, the foregoing section sanctions the use of both expressions. An intermediate order.is defined in section 2556. A decree or order must be duly signed. {McXaughton v. (Jhcme, 5 Ahh. JV. C. 225.) Usually it is not difficult to distinguish between an order and a final order or decree; but in some cases it is hard to- know whether the order ending a special proceeding is a final order or decree, or only a " direction of a Surrogate's Court, made or entered in writing, and not included in a decree" — styled an order; tor the proceeding may be disposed of finally, bj' an order which does not determine the rights of the parties. This distinction is substantial. The powers of the Surrogate's Ch. 12, § 300. DECREES AND ORDERS. 307 Same Subject : Special Procefiding. Court are peculiar and limited; and it frequently happens that a special proceeding may be terminated by an order dismiss- ing it for want of jurindiction, or for some other reason, with- out any adjudication of the rights of the parties. Thus in a special proceeding to establish hcirsMp the surrogate is re- quired to hear the allegations and proofs of the parties; hut, '' if it appears that there is a contest, respecting the heirship of a party, or respecting the share to which a party is en- titled, as an heir of the decedent, the surrogate must dismiss the proceedings." (§ 2{;56.) Obviously the order of dismissal, although it terminates the proceeding, is not a " final order or decree " within the definition. An order, as distinguished frojn a final order or decree, corresponds to the order made in an action pending in a court of record, as defined by section 767. Section 300.— Same Subject : Special Proceeding. Sometimes it may be difficult to know whether a particular matter or application i;-; a special proeeediug at all, within the meaning of the statute. Notwithstanding the confusing defini- tions in sections 3333 and 3334, it is reasonably certain tTiat a special proceeding in the Surrogate's Court is the ordinary prosecution in that " court of justice, by a party against an- other party, for the enforcement or protection of a right" or " the redress or jn-eveution of a wrong " ; and we know, that, "except in a case where it is otherwise specially prescribed by law," such a special proceeding " must be commenced by the service of a citation issued upon the presentation of a peti- tion." (§ 2516.) However, even with these bits of precise information, the practitioner occasionally may be puzzled to know the character of the particular matter in hand. Per- haps no rule, that will apply in all cases, can be formulated; but, as a general thing, where the Surrogate's Court is moved by an original petition or other application, whereon a cita- tion or order to show cause issues, a special proceeding has been instituted v/hich may be determined by a decree — unless the application merely relates to some incidental matter in a special proceeding aliead>- pending— and the fact that the sub- ject-matter of the application may be a mere incident to the 808 ^ ^ PART I : OENERAL PROCEDURE. Ch. 13, §301. Surrogate's Decree ; Collateral Attack. general (iilmlnistniilon of on estate is altogether immaterial. Thus, foi' in.stance, an application under section 271(> to com- pel the return of an inventory is a special- proceeding and may be carried to the Court of Appeals {Matter of Wagner, 119 -A', r. 28) ; and so is an application to the Surrogate's Court, under section 1380, for leave to issue execution on a judgment recovered against the decedent in his lifetime. {Estate of Taylor, 8 Civ. Pro. Rep. 453.) But an application, under sub- division 6 of section 2481, to open, vacate or modify a final order or decree, or " to grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other suflS- cient cause" is not a special proceeding leading to a decree: it is only a motion leading to an order in a special proceeding. If the application be denied the original decree stands; but if it be granted there no longer is any decree, and the special proceeding continues thereafter. {Pease v. Egan, 3 Dem. 320.) Section 301. — Surrogate's Decree : Collateral Attack. Although the Surrogate's Court is a tribunal of restricted powers, having no authority other than that conferred upon it by statute {Matter of Bolton, 159 N. Y. 129), yet, within the domain of its statutory jurisdiction, its decree, like a judg- ment of the Supreme Court, is not subject to collateral attach. The mere fact that this is a statutory court of limited juris- diction is of little moment; for the same thing is true of the Federal courts and of our own Court of Appeals. {See sec. 63 ante.) The Code provides that " the Surrogate's Court ob- tains jurisdiction in every case, by the existence of the juris- dictional facts prescribed by statute, and by the citation or appearance of the necessary parties" (§ 2474) ; but, " the existence of the jurisdictional facts," is not a self-proving matter and so must be established by evidence and be deter- mined J>!/ the court. When, therefore, it appears that there has been legal evidence of the existence of a duly alleged jurisdictional fact upon which the surrogate has decided, and the necessary parties have been duly cited or have ap- peared, his adjudication thereon is not open to collateral attack. It is not material how the decision was reached, if the facts which confer the right to act are alleged. Ch. 13, § 303. DECREES AND ORDERS. 309 Same Subject : Some Statutory Provisions. " Power to affect the adjudication resides in the court which made it, and in the court to wliich it may be appealed; but otherwise it is not open to question " — in tlie absence of fraud or collusion. (§ 247.3; O'Connor v. Euggins, 113 IV. Y. 511, Smith V. Blood, 106 App. Div. 317, 94 Supp. 667; see sec 63 ante.) Thus a surrogate, before admitting to probate the will of a resident, has power and is bound to inquire and decide whether the testator, at the time of his death, was a resident of the surrogate's county — that being a jurisdictional fact; and if the surrogate decides, upon evidence legally tending to sup- port his decision, that the testator was such a resident, neither his decision nor the decree entered thereon may be questioned collaterally, except for fraud or collusion, even though, as mat- ter of fact, the testator was not such a resident. {Bolton v. Schriever, 135 X. Y. 65.) In the first Roderigas case (63 N. Y. 406; see also 2nd case 76 X. r. 316) this doctrine was carried to the limit; and it was held that the inquiry and determina- tion by a surrogate as to the death of a person, upon whose estate administration has been applied for, is judicial in its nature so that, as the surrogate has jurisdiction to pass upon this question of fact and must determine it, when he has de- termined that it exists — even though in truth it does not exist — his decree upon such determination is conclusive un- til reversed or vacated. The logic of this much criticised case is unanswerable; but its doctrine is condemned in the de- cisions of nearly all the other States and recently has been overruled by the Supreme Court of the United States. {Scott v. McNeal, 154 V. S. 34, reversing 5 ^Yash. 225; Matter of Eillan, 172 N. Y. 547, 557; see sees. 87-90 ante.) Section 302. — Same Subject : Some Statutory Provisions. It is provided by section 2473 that, " where the jurisdiction of a Surrogate's Court to make, in a case specified in the last section, a decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or ap- peared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allega- tion of the jurisdictional facts, contained in a written petition 310 PART I : GENERAL PROCEDURE. Ch. 13, § 303. Decrees and Orders : How Signed. or answer, duly verifled, used in the Surrogate's Court. The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree." {See sec. 87 ante.) The importance of alleging the juiisdictional facts, thereby securing evidence of their existence as provided by this section, is apparent in view of the rule that when certain facts are to be proven in a court of limited jurisdiction, as a basis for its action, a total defect of evidence as to any essential fact will make its action void, while some proof of every such fact may enable it to proceed, {31iller v. Brinkerlioff, 4 Denio 119; Staples V. FaircMM, 3 X. Y. 41; Potter v. Ogden, 136 N. Y. 384, 396.) There are other statutory provisions defining or limiting the conclusiveness of certain decrees — as, for instance, a de- cree admitting to probate a will of personal property (§ 2626) or a will or real property (§ 2627), or a decree judicially se^ tling the account of an executor or administrator (§ 2742)- — which hereinafter will be considered in connection with the particular proceeding wherein such a decree may be made. Section 363.— Decrees and Orders : How Signed. There seem.? to be no statutory provisions as to the signing of orders or decrees made by the surrogate, or by the Surro- gate's Court, except as the surrogate expressly is author- ized to " sign decrees, letters testamentary, of administration and guardianship, and orders during the month of August, or such other month as he shall designate for his vacation, wherfe- ever he shall be passing such vacation within the State " (% 2505) ; but the Code provides generally, with reference to each particular order or decree referred to therein, that it be made hy the surrogate — thus implying that he must sign it. Moreover, the surrogate is authorized " to complete, and certify and sign in his own name, adding to his signature the date of so doing, all records or papers, left uncompleted or unsigned by any of his predecessors " (§ 2481 suh. 9) ; but the clerk of the Surrogate's Court also, and the deputy clerk as well, is authorized to " certify and sign as clerk of the court, or as deputy clerk of the court, as the case may be, any of the recordis of the court, including the certificate specified ill sec- Ch. 13, § 304. DECREES AND ORDERS. 311 Form of Order or Decree. Hon 2629 of this act, and the record.-s and papers specified in !>;ubdivision 9 of section 2481 of this act." (§ 2509 suh. 1; see sec. 56 ante.) Of course no question can arise where an order or decree — ■ whether made by the surrogate or by the Surrogate's Court — actually is signed by the surrogate; and this is the safe practice until there shall be an authoritative adjudication that an order or decree of the Surrogate's Court is valid when signed by the clerk of the court, pursuant to an actual determination iind direction of the surrogate holding the court. Under the former statutes it was held that an original decree was not void merely because the acting surrogate who signed it had not appended to his name the title of his office {Dohke v. Munro, 1 Redj. 486, s. c, as Munro's Estate, 15 Abh. Pr. 363), and also that those statutes contemplated the actual signatiore of the surrogate to all papers of any importance so that a de- cree upon a final accounting, filed by a surrogate's clerk but not signed by the surrogate, was invalid. (McNaughton v^ Chave, 5 Abb. N. C. 225; see sec. 2gg ante.) Section 304.— Form of Order or Decree. As Chapter 18 of the Code was originally drafted, it formu- lated a procedure before the surrogate, as an administrative and judicial officer, and not a procedure in the Surrogate's Court as a court of record; but when the chapter finally was enacted (1880 ch. 178) the Surrogate's Court already had been made a coui-t of record, by an amendment to section 2 of the Cod^ (1877 ch. 416), and no corresponding changes in the phraseology of the chapter were made. In this way many in- congruities have resulted ; and of them, one may be seen in the fact, that, almost invariably, orders or decrees — though mani- festly the orders or decrees of the Surrogate's Court — are re- quired to be made by the surrogate.. Apparently there is no difference between an order or a decree of the court and an order or decree of tJie surrogate; but the two seem to be one, as though the surrogate is always in court so that his orders and decrees are the orders and decrees of his court. There is Jttere no such distinction, as in the Supreme Court between an order made by a justice at diambers and an order of the 813 . PART I : GENERAL PROCEDURE, Ch. 13, § 305. Orders and Decrees to be Recorded. court at Special Term. So it is that an order or decree of the Suriogate"s! Court does not require the ordinary caption of a court order: " .If a twin of ilw Surrogate's Court held in and jcr the voar.tij of," etc.; but if it be entitled simply with ref- erence to 1L)c .'iFecial proceeding in which it is made, and be sUjued hjj the siirr.offatc. it is sufficient. Throughout Chapter 18 of the Code there are many insttmces where it requires a petition to be presented to the '' Surrogate's Court," and yet confers upon " the surrogate " the power to act upon the peti- tion, while his determination thereon is spoken of as a decree or order of the Surrogate's Court"; and any attempt to pro- ceed upon the theory, that a distinction is intended which may affect jurisdiction, will be found impracticable. (See sec. 62 ante.) Eule 3 of the General Rules of Practice provides that When .Tiiy order is eatered, all the papers, used or read on the motion on cither side, shall he spocifled In the order, and shall be filed with the clerks unless alreat'y on file or otherwise ordered hy the court, or the order may be set aside as irregular, with costs. The clerli shall not enter such order unless the papers arc filed, except when otherwise specially directed by the court. « * » Under rule 41 of these Rules of Practice, if an order of the Surrogate's Court does not specify the papers on which it was made, an appeal therefrom will be dismissed. {Whipple v. Ripson, 29 App. Dir. 70, 51 Supp. 635; Matter of Gowdey, 101 App. Dii: 275, 91 Supp. 662.) I Section 305.— Orders and Decrees to be Recorded. The Surrogate is required to record each order and decree in the appropriate book kept in his office. There is a special record book for each of the following orders or decrees : a de- cree admitting a will to probate ; a decree whereby the account of an executoi', administrator, trustee or guardian is settled; and an order or decree made in a special proceeding for the disposition of a decedent's real property for the payment of his debt.';. Every other order or decree is recorded in a record book of miscellaneous orders and decrees. Moreover, each de- cree revoking the probate of a will, or in any wise affecting let- ters testamentary, letters of administration or letters of guardianship, or suspending or removing a testamentary Ch. 13, §§ 306, 307. DECREES AND ORDERS. 313 Decree Settling an Account— Decree or Order : Evidence of Assets. trustee, ov inodif.ying' or in any otlier wise affecting any de- cree, rauKt be noted plainly at the end or in the margin of the record of the will, letters or original decree (§§ 2498 d 2499; see sec. 17 ante.) Section 306. — Same Subject : Decree Settling an Account. § 2.",.->l. nEniF.B fiETTMxc: AX Account, to Contain Sommaky Thereof. — Bach ricjci'ee. whereliy an account is judicially settled, must contain, in the iDody thpvoof, a summary of the account as settled ; or must refer to such a summary, which must be recorded in the same hook, and is deemed a part of the decree. (1880 ch. 178.) Section 307 Decree or Order : Evidence of Assets. § 23r>2. Decked ok Oedeii; When Evidence of Assets. — A decree, direct- ing paymenr by an execv.tor. administrator, or testamentary trustee, to a crerlitoi- of, or a pcrsoB. interested in, the estate or fund, or an order, per- mitt'Ins n .iudgmcnt creditor to issue an execution against an executor or ad- ministiatoi-. is. except upon an appeal therefrom, conclusive evidence that there are sufficient iissets in his hands, to satisfy the sum which the decree directs him to pay, or for v,'hich the order permits the execution to issue. (1880 ch. 178.) This section, however, does not apply to a decree made upon the accounting of an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee. (Matter of f,'caniaii, 83 App. Div. 49, 71 Supp. 376.) Indeed Ri'ction 2806 expressly provides, with reference to a decree against a decedent's executor or administrator rendered upon f-uch an accounting, that So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section 2552 of this act. (rfee sec. post.) Inasmuch as the decree of a surrogate directing an executor, administrator or testamentary trustee to pay money to a cred- itor, or a person interested in the estate or fund, thus is made conclusive evidence that thei)e are sufficient assets in his hands to satisfy the sum directed to be paid, the executor or ad- ministrator cannot be heard, in contempt proceedings insti- tuted to enforce the decree, to impeach the decree itself which is conclusive upoii all questions adjudicated thereby {Matter of Waring, 1 4pp. Div. 29, 36 Siipp^ 529) ; nevertheless, as under section 2555, the enforcement of such a decree by con- tempt proceedings is diseretionarij with the surrogate, it is competent for an executor ;or administrator to show, as a rea- son why such proceedings should not be prosecuted against S14 PART I : GENERAL PROCEDURE. Ch. 13, §308. Decree Directing Payment of Money. him, that he is unable to pay the amount which has been de- creed. {Matter of Battle, 5 Dem. 447, 10 8t. Rep. 167, 13 Civ. Pro Rep. 27.) Each of these propositions is correct. The de- cree is conclusive evidence of sufficient assets for all purposes; but, upon an application to enforce it by contempt proceed- ings,, the truth may be shown by the executor.or administrator in appealing to the discretion of the surrogate to save him from a useless imprisonment. (Matter of Strong, 111 App. Div. 281, 97 Supp. 459, aff'd 186 N. Y. 584.) Section 308.— Decree Directing Payment of Money. S '2T,riC. Di:c!tKi) ii"Oii MoxDY : how Docketed. — Where a decree directs the payment of a sum of money into court, or to one or more persons tlierein designated, tlie surroga-te, or tbe cleric ot the Surrogate's Court, must, upon payment ot his fees, furnish to any person applying therefor, one or more transcripts, duly attested, stating all the particulars, with respect to the de- cree, which are required by law to he entered in the clerk's docket-hook, where a judgment for a sum of money is rendered in the Supreme Court, so far as the provisions of law, directing such entries, are applicable to such a de- cree. Each county clerk, to whom such a transcript is presented, must, upon pay- ment of his tees, immediately file it, and docket the decree in the appropriate docket-book, kept in his office, as prescrihed by law for docketing a judgment ot the Supreme Court. The docketing of such a decree has the same force and effect, the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied, as if it was such a judgment. (188& ch. 178.) Under the former statute, which was re-enacted in this sec- tion, the Court of Appeals held that docketing a surrogate's decree for the payment of money did not transform it into a judgment of the Supreme Court, but simply made it a lieu upon real estate so that thereafter an execution might be is- ,sued to- enforce it as though it were a judgment recovered in the County Court. {Townsend v. Whitney, 75 N-. Y. 425.) A decree against an executor or administrator, which ad- judges that money of the estate in his hands is due and pay- able to a party entitled, runs against him personally and de honis propriis: and, when docketed, it becomes a general lien upon 7ms oii-ii propci-tji and may be Enforced by execution against him. Kuch a decree does not adjudge that he pay in his capacity as executor or administrator, luf that he pay [Power v. Speckmaii, 126 X. Y. 354) ; and it is not a lien upon any real property of the decedent. [Bennett v. Crain, 41 Hun 188, 4 St. Rep. 158.) Where the decree directs payment of a separate sum of GH. la, § 309. DECREES AND ORDERS. 315 Same 8ul),iect: How Enforced by Execution ; When by Action. money to each of several persons there may be one trans- cript, covering the separate items, or there may be several transcripts; and in either case, separate judgments may be docketed, as where a judgment of thi)'.l. ) However, the result is practically the same whether the indebted representative be executor or adminis- trator; for, upon his accounting, he will be charged with his debt — if an executor, under these pr(>visions of section 2714; and, if an administrator, under the general rule applicable to him. Inasmuch as he still aires the estate, even though he be insolvent, the decree settling his account should be made ac- cordingly and adjudge that he pay. Whereupon, if an execu- tion issued thereon be returned unsatisfied because the repre- sentative is insolvent, the matter again may come before the Surrogate's Court in contempt proceedings. Unless it be ad- judged that he pay — thereby merging the debt in the decree — the claim might be lost, if, after his accounting, the repre- sentative should become solvent. But* the courts will not permit imprisonment for debt as a means of collecting claims against an insolvent executor or administrator, where there is no dereliction of duty on his part. Even though the representative properly is chargeable with any just demand which the decedent had against him — and, if an executor, by section 2714 is, made liable therefoV Ch. 13, § 319. DECKEES AND ORDERS. 337 Contempt Proceedings against Executor or Administrator for Debt. as for so much money in his hands when it becomes due — ^yet this liability of the representative is not the same for all pur- poses as though he actually had received the money; and if, all the time after he qualified, he was insolvent and unable to pay his debt, he cannot be punished by fine or imprisonment simply because he does not pay over or distribute the amount of it as so much money in his hands {Batwiis v. Stover, 89 N. Y. 1; Matter of OcJcershausen, 59 Htm 200, 13 Sivpp. 396; 37 St. Rep. 180) ; but he has the burden of proving such in- solvency. {Matter of Strong, 111 App. Div. 281, 97 Supp. 459, aff'd 186 N .Y. 584.) Moreover no recovery can be had against his sureties because of such failure to apply the amount of his debt as directed by the decree {Baucus v. Barr, 45 Hun 582, 10 St. Rep. 683, aff'd 107 N. Y. 624) ; but, likewise, the burden of proving the insolvency is upon them. (Keegan v. Smith, 60 App.- Div. 168, 70 Supp. 260, aff'd 172 N. Y. 624.) The principle of these decisions is this : The representative is not required to he solvent, but it suffices if he shall be honest and diligent; and so the debt due from him to the decedent's estate is to be treated as an ordinary asset, and its value meas- ured, like any similar asset, by its collectibility. Moreover, where the representative is absolutely insolvent, at the time of his appointment, and so continues throughout the entire ad- ministration of the estate, no dereliction of duty can be im- puted to him because he does not discharge a debt which it is impossible for him to pay ; and, even if he were solvent when the letters were issued to him but afterwards became unable to pay his debts, by reason of pecuniary losses or business mis- fortunes, not affecting any funds of the estate except his own debt to it, he should not be punished with fine or im- prisonment simply because of his inability to comply with the decree. (Rugg v. Jenks, 4 Dem. 105, s. c. as Matter of Rugg, 3 St. Rep. 224.) A contrary doctrine seems to have been held recently by a surrogate of New York county {Matter of David, 44 Misc. 337^89 Supp. 927) ; but in this case it appeared that the executor, with,the purpose of evading Ms obligations, had put some of his property into the hands of his wife and other- Wise had shown bad faith. It' should be observed that it is only where a party "re- 398 PART I : GENERAL PROCEDURE. Ch. 1?. §§ 320, 321. Decree for Costs not Enforceable— Execution to Precede Proceedings. fuses or icilfaUij iicf/lccts to obey " a decree directing the pay- iiiant t)f money, that lie may be punished as for a contempt of court ( i:; 2555) ; but no one can refuse or wilfully neglect to do wluit it is iiiiiJo.^nibJc foi him to do. Moreover any practice whewby condinpt proceedings may be employed to coerce the payment of an ordinary debt, conflicts with the spirit of former Code section 16 — now re-enacted in the Civil Rights Law as follows : § 21. No IMPBISOXMEXT FOE XOX-PAYMEiXT OF MON'FA' PUESUANT TO JUDO- >rE.\T OR ORDEE RDQTTIEIXG P.1YMBXT OF MONEY DUB UPOX COXTKACT. EXCept in a case where it is otherwise specially prescribed by law, a person shall not he arrested or impi'isoned for disobedience to a judgment or order, re- qviiring the payment of money duo upon a contract, express or implied, or as damages for non-performance of a contract. (1909 ch. 14.) Section 320. — Decree for Costs not Enforceable by Contempt Proceedings. A decree of the Surrogate's Court for the payment of costs by a party pcrsoimlhj. cannot be enforced by punishment for contempt under section 2555 {Matter of Eumfreville, 154 N. Y. 115) ; and the rule is the same even though there are other directions in the decree which may be so enforced. {Matter of Bannint/. 108 App. Dir. 12, 95 Siipp. 467.) Section 2555 is subordinate to the general provisions of former Code sec- tion 15, now re-enac ted in the Civil Rights Law as follows : § 20. No IMPEISOXMEXT FOB NOX-PAYMBXT OF COSTS IX CEBTAIN CASES. •A person shall not be arrested or imprisoned, lor the non-payment of costs, awarded otherwise than by a final judgment, or a final order, made in a special proceeding- instituted by State writ, except where an attorney, coun- sellor, dr oth'e'i- officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for non-attend- anoe. (1909 ch. 14.) However a decree for the payment of costs is enforceable by execution. {Matter of Hirsch, 185 N. Y. 598.) Section 321.— Execution to Precede Contempt Proceedings. Except as provided by subdivision 4 of section 2555, where a decree directs the payment of money only an execution is- sued thereon must be returned unsatisfied, either wholly or' in part, before the decree can be enforced by contempt pro- ceedings (Matter of Dissmvay, 91 .V. Y. 235) ; but, in a case specified in subdivision % the decree may be so enforce(i Ch. 13, § 322. DECREES AND ORDERS. 329 Practice in Contempt Proceedings. " either witliqut issuing an execution, or after the return of an execution," as the surrogate thinlcs proper. (See sec. 317 ante.) Howeyer, even where the delinquent is an executor, adminis- trator, guardian or testamentary trustee, generally, an execu- tion should be issued and returned before invoking the power, conferred upon the Surrogate's Court, of enforcing obedience to its decree by punishing the delinquent as for contempt of court. This power is an extraordinary one and should be exercised in harmony with the liberal spirit of our legislation concerning imprisonment for debt. {Doran v. Dempsey, 1 Brad. 490; Matter of Callahan, 1 Tucker Q2; Ferguson v. Cum- mings, 1 Dem. 433; Estate of Kellinger, 2 Civ. Pro, Rep. —j\IcCarti/—68.) Section 322.— Practice in Contempt Proceedings. The first step in the procedure whereby a decree, in whole or in part, may be enforced under section 2555, is " by serving a certified copy thereof upon the party against whom it is rendered, ov the officer or person who is required thereby, or by law, to obey it " (Woodhouse v. Woodhouse, 5 Bedf. 131; Sudloic V. Piiielniey, 1 Dem. 158) ; and thereupon, "if he re- fuses or wilfully neglects to obey it" the decree may be en- forced " by punishing him for, a contempt of court." (§ 2555,) Section 753 of the Judiciary Law is a re-^actment ,of for- mer Code section 14, and contains general provisions con- cerning " contempts punishable civilly " which apply to ,all courts of record; and among them are the following: A court of record has power to punisli, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special piroceediug, pending in the court may be defeated. Impaired, impeded, or prejudiced, in either of the following cases : * e * (3) A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum ; or lor any other disobedience to a lawful mandate of the court. * * * (8) In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party, (1009 di. 35,) 33a PART I : GENERAL PROCEDTIRE. Ch. 13, § 323. Same Subject : Order to Show Cause or Warrant to Attach OfEender. The provisions of law, regulating the exercise of this power " to punish bj fine and imprisonment, or either," have been taken from chapter 17 of the Ctode (former §§ 2266-2292) and ■re-enacted in article 19 (§§ 750^781), of the Judiciary Law (1909 ch. 35), entitled "Contempts"; and after a certified copy of the Surrogate's-' Court decree, which is to be enforced under section 2555, has been duly served on the delinquent, if he still " refuses or wilfully neglects to obey it," the procedure to punish " him for a contempt of court " must be taken under that article of the Judiciary Law. Within statutory limitations the extent to which contempt proceedings may be carried, in enforcing a decree, is largely in the discretion of the surrogate (Matter of Snyder, 34 Hun 302, affd 103 A^. Y. 178) ; and, where a decree for the payment of money is enforced by a fine it is for the benefit of the party entitled thereunder, and when the flue has been paid by the delinquent he will be given credit for its amount. [Matter of Pyp, 18 App. Div. 306, s. c, as Matter of Van Houten's Estate, 46 Supp. 350, aft'd 154 X. Y. 773; and see Judiciary Law, § 778.) Section 323 — Same Subject : Order to Show Cause or War- rant to Attach Offender. Section 756 of the Judiciary Law, a re-enactment of former Code section 2268, is as follows : § 7.=ifi. Issi-B OF Waeraxt withoi:t Notice. — ^Where the offense consista of a neglect or refusal to obey an order of the court, requiring the' payment of costs, or of a spocifled sum of money, and the court is satisfied, by proof, by aiBdavit. that a personal demand thereof has been made, and that payment thereof has been refused or neglected ; it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money, and the costs and expenses of the proceeding, are paid, or until he is discharged according to law. (1909 ch. 35.) But, as we have seen already, a Surrogate's Court decree for the payment of costs cannot be enforced in this manner (Matter of Hiimfreville, 154 IS'. Y. 115) ; and, besides, it seems that this section applies only to an order of such a character that it cannot be enforced by execution (Harris v. Elliott, 163 .A". Y. 269 ; Matter of Hess, 48 Hun 586, 1 Supp. 811, 16 8t. Rep. 255) thus excluding from its operation a Surrogate's Court decree directing the payment of money. Be this as it may, it is the general and perhaps the only safe practice in the Surrb- Ch. 12, § 323. DECREES AND ORDERS. 331 Same Subject: Order to Show Cau,^e or Warrant to Attach Offender. gate's Court to ignore section 750 (former Code section 2268), and proceed under the following provision (former Code sec- tion 2269) of the Judiciary Law: § 757. Oedek to Show Cau.sh. oe Waiiraxt to Attach Offender. — The court or .iudge, authorized to punish for the offence, may, in its or liis discretion, where the case is one of those specified in either of the last two sections, and, in every other case, must, upon being satisfied, by affidavit, of the commission of the otfifnfe, either 1. Make an order, requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offence ; or 2. Issue a warrant of attachment, directed to the sheriS of a particular county, or, generally, to the sheriff of any county where the accused may he found, commanding him to arrest the accused, and bring him before the court or judge, either fortliwith, or at a time and place therein specified, to answer for the alleged offence. (1909 ch. 35.) In proceeding under this section notice is given to the de- linquent either by the order to show cause or the warrant of attachment, and he therehy is enabled to answer concerning the alleged offence. Ppoceedings to punish for contempt must be taken as pre- scribed in the statute; for they are stricti juris and cannot be su.stained unless there is a literal compliance with the law. (McComh V. Wearer, 11 Hun 271; Bradhunj v. Bliss, 23 App. Div. 606, 48 Siipp. 912.) The requirement that the " commis- sion of the offense " must be shown by affidavit is imperative (see Ackroyd v. ^ehroijd, 3 Daly 38) ; and the aflfldavit should carefully set forth the facts constituting the contempt. There must be either an order to show cause why the delinquent should not be punished, or an attachment bringing him before the court or surrogate to answer for the alleged offence (Fall- hrook Coal Co. v. Heekslicr. 43 Him 640, 6 m. Rep. 676), and the proceeding cannot be commenced by an order ba«ed upon a notice of motion (Sandford v. Sandford. 40 Hun 540, 2 8t. Rep. 133; People e.r rel. Piatt v. Rice,xli Hun 179, 26 8upp. 345, 56 St. Rep. 546; West Hudson County Trust Go. v. Waldron, 119 App. Div. 294, 104 8upp. 513) ; but such an irregularity is cured by an appearance and answer without objection. (Wilson y. Greig, 24 HunM% l2 WUly. Dig. 73; Maigille v. Leonard, 102 App. Dir. 367, 92 Supp. 656,'a#^i 181 iV. r. 558.) In every case a certified copy of the decree to be enforced naust be served upon the party against whom it is rendered (§ 2555) ; and service thereof upon the party's attorney will S32 "' PART I : GENERAL PROCEDURE.. Ch. IsYs 334. Form: Affidavits for Order to Show Cause. not suffice. {Ooldie v. GoMie, 77 App. Div.. 12„ 79 Bupp, 268; "JEellcr V. Keller, 100 App. Div. 325, 91 Supp. 5^8 ; ^Matter of Weeks v. Coe, 111 App. Div. 337, 97 Sitpp. 704.) If the offence consists of a negject or refusal to obey a. decree requir- ing the payment of money, a preliminary personal demand tjiereof must be made. {MeComh \. ^Yeav■er. 11 Han 271; Matter of Ockershauscn, 59 Hun 200, 13 Siipp. 396, 37 St. Rep. 180.) Moreover, in such case, an execution also should have been returned unsatisfied before contempt proceedings are in- stituted; but this may be dispensed with bj' the surrogate " where the delinquent i.-s an executor, administrator, guardian or testamentary trustee, and the decree relates to the fund or estate." (§"2555 sul. 4.) Section 324.— Form : Affidavits for Order to Show Cause. [Title of Proceeding.) STATE OP NEW YORK ) ,„ County of j of the of in said county, being duly sworn, says: that by a decree of the Surrogate's Court of the county of , duly made and entered in the above entitled special proceeding, and recorded in the office of the surrogate of said county, on the day of , 19. ., the account of the above named X. Y., as executor Of the last will and testament of deceased, (or otherwise cle'scribe delinquent party) was judicially settled, and thereby it was, among other things, adjudged and decreed that said X. Y. forth- with pay to this deponent the sum of , dollars and cents ($ ), being the amount tHafdeponent i!3 entitled io receive in full of a legacy given to him by said last will and testament of , deceased; {or otherwise state the- money directed to be paid, or the act required to be performed;) and That, as deponent is informed and verify believes, a certified copy of said decree was duly and personall7~served upon said X. Y. at in said county of , N. Y., on the day of , 19 . . , by one proof of which service is hereto an- nexed; (if decree directs payment of money, proceed: and that, at the same time and place, payment of said sum of money, so directed to be paid to deponent, was duly and personally demanded of said X. Y., in behalf of deponent, by said , who had been duly auth- orized by deponent to make such demand; and that proof of such de- mand is hereto annexed;) and ^T&at said X. Y., notwithstanding (such demand and) such service upos him of a certified copy of said decree, refuses or wilfully neglects Ch. 13, § 334, DECREES AND ORDERS. 333 Form : Affidavits for Order to Show Cause. to obey the same and hzs neglected and failad, and still wholly neglects and fails, to pay over to deponent said sum of money, so adjudged and decreed to he paid over to him as aforesaid, or any part thereof, (or otherwise state wherein delinquent fails to obey decree,) (That said decree was duly docketed in the office of the cleric of county, on the .... day of , 19 . ., and execution issued thereon to the sheriff of said county, where said X. Y. then resided and still resides, but that such execution has been returned wholly un- satisfied; and that no part of the amount so adjudged to deponent by said decree has been paid to him by said X. Y. or otherwise. (This is required only where decree directs payment of money; and the execur Hon may he dispensed with by the surrogate, where delinquent is an executor, administrator, guardian or testamentary trustee.) Deponent further says that he is desirous that the surrogate either make an order herein, as authorized by section 757 of the Judiciary Law, requiring said X. Y. to show cause before the Surrogate's Court of county why he should not be punished for his said offence, or issue a warrant of attachment directed to the sheriff of the county of , commanding him to forthwith arrest said X. Y. and bring him before said Surrogate's Court to answer for said offence. {Jurat.) (.Signature.), i I "Tl ' Proof of sermee of certified copy of decree. (Title of Proceeding.) STATE OF NEW YORK, I County of .; J ®^' •• •• of the of .., in said county and State, being duly sworn, says: that he is more than 21 years of age and that on the day of , 19. ., at in said county of N. Y., he personally served upon said X. Y., of said a certified copy of the final decree made, in the above entitled special proceeding, on the judicial settlement of the account of said X. Y., as executor of the last will and testamient of deceased, which decree was made and entered herein and recorded in the ofiice of the surrogate of said county of on the day of 19. ., (and of which a copy is hereto an- nexed,) and which certified copy thereof was duly attested and certified according to law to be a true copy of said decree and Of the whole thereof— by delivering said certified copy to, and leaving the same with, the said X. Y. at his residence, No street in said ; and deponent further says that he well knew the person so served to be said X. Y. mentioned and described in said decree, and in the above entitled special proceeding, as the executor of the last will and testam'ent of said ■ , deceased. i^^rat.) (Signatwe.y. 834 '" ~' PART I : (JENBRAL PROCEDURE. Ch. 13, § 325, Same Subject : Order to Show Cause. Section 325. — Same Subject : Order to Show Cav^e. The first sentenc?of former Code section 2273 has been re- enacted in these two sections of the Judiciary Law : S 7(!0. When Oedbr to Show Causei jiat be Made. — ^An order to show cnuse may bo made, either before or after the final judgment in the action, or the final order in the special proceeding, (1909 ch. 35.) § Tfil. Ohder to Show Cacse Deii'Inbd. — ^An order to show cause is equiv- alent to a notice of motion ; and the subsequent proceedings thereupon are taken in the action or special proceeding, as upoh a motion made therein, 1909 ch. 35.) AYliere a decree of the Surrogate's Court is to be enforced by contempt ])i'Oceedings, it is the general practice to iegin ihcin hij ail order to show cause. This method is as effectual iis an attachment unless, perhaps, in exceptional cases, as where the delinquent is about +0 betake himself beyond the jurisdiction of the court. As all subsequent steps under an order to show cause are taken in the particular special proceeding, as upon a motion made therein, the papers must be entitled accordingly. Copies of the affidavits upon Avhicli the order is granted should be served therewith [Matter of Hmethurst, 2 Sandf. 724; Ward V, Arenson, 10 Bosw. 580) ; but papers that once have been served upon the party, although referred to in the order, need not be served again. (Albany City Bank v. Schermerhorn, I) Paige 37/; Clark v. Bininger, 11 Jones & SpenCer 126, dff'd 75 y. r. 344.) It has been held that contempt proceedings to enforce a judgment in an action, when instituted by an order to show cause, do not constitute a special proceeding, and, therefore, that a final order made therein is not appealable as of right to the Court of Appeals. {Jewelers' Mer. Agency v. Roths- child, 155 :\'. y. 255.) Under this decision, as applifed to a special proceeding in the Surrogate's Court wherein has been rendered a decree which is being enfoi-ced by contempt proceed- ings, neither the order to show cause, nor the order adjudg- ing the delinquent guilty of contempt, is a final order or decree appealable as of right to the Court of Appeals. (/Sfee Matter of Simonson, 164 N. Y. 571.) Ch. 13, § 326. DECREES AND ORDERS. 835 Form : Order to Show Cause. Section 326. — Form : Order to Show Cause. {Title of Proceeditig.) Upon the decree of our Surrogate's Court of the county of , duly made and entered in the above entitled special proceeding and recorded in the office of the surrogate of said county on the day of 19. ., whereby the account of (X. Y.) ■ as execu- tor of the last will and testament of , deceased, was judicially settled and whereby it was, among other things, adjudged and decreed that said X. Y. forthwith pay to the sum of dollars and cents ($ ), being the amount that he is entitled to receive in payment of a legacy given to him by said last will and testament of , deceased; (or other- wise briefly recite money directed to be paid or act required to be per- formed by decree) ; and Upon reading and niing the affidavit of said ; , veri- fied on the day of 19.., whei'eby it appears that SEtid decree was duly made and entered as aforesaid, and that a certified copy thereof was duly and personally served upon said X. Y. at in said county of N. Y., on the day of , 19 . . , and that, at the same time and place, payment of said sum of money, so directed to be paid to said was duly and personally demanded of said X. Y.; and that said X. Y., notwithstand- ing such demand and such service upon him of a certified copy of said decree, refuses or wilfully neglects to obey the same and has wiolly neglected and failed to pay over said sum of money io .., so adjudged and decreed to be paid over to him as alforesaid, or any part thereof; (and, whereby it also appears that said decree was duly docketed in the office of the clerk of county, on the day of 19 ■ ■ . and execution was issued tiereon to the sheriff of said county, where said X. Y. then resided and still resides, but that such execution has been returned wholly unsatisfied, and that no part of the amount adjudged to said by said decree has been pa:id to him by said X. Y.; (or othermse recite facts consUtuting the contempt as disclosed by the affidavit) and on motion of , Esq., attorney for said , I DO HEREBY ORDER that X. Y. show cause before me, at a Surro- gate's Court to be held in and for the county of , at the surro- gate's office in the of , N. Y., on the .... day of 19. .,^ ^t 10 o'clock in the forenoon of that day, or as soon thereafter as couiisel can be heard, why he should not be punished, as for a contempt of court, for his refusal or wilful neglect to obey said decree of our Surrogate's Court entered herein on the day of 19- -. directing the payment of dollars and '^^^^ (* ) to said (or othermse specify dis- obeyed direction in decree' according to the fact) and why said . . . .- 83Q PART I : GENERAL PROCEDURE. Ch. 13, § 337. Same Subject: Service of Order to Show Cause. should not have such other and further relief in the premises aa may be just and proper, together with the costs of this motion; and I ALSO DIRECT that a copy of this order and of said affidavit, re- ferred to herein and annexed hereto, be personally served upon said X. Y. on or before the .... day of 19 . . , and that such service shall be sufficient. Dated at , N. Y., on the day of , 19. .. 9 Surrogate of County. Section 327.— Same Subject: Service of Order to Show Cause. The statute does not specify how the order to show cause shall be served. In a contempt proceeding in an action where the alleged delinqvient has appeared by an attorney, whose au- thority has not terminated, it seems that the order may be served upon such attorney. {Stafford v. Brown, 4 Paige 360; Pitt V. Davison, 37 T. Y. 235; Tscacs v. Calder, 42 Ajip. Div. 152, 59 Supp. 21, s. c. IGO .Y. Y. 700; Grant v. Greene, 121 App. Div. 756, 106 Supp. 532; Ledercr v. Lederer, 47 Misc. 471, 95 Supp. 934; Welch v. Weieli, 59 Misc. 238, 110 Supp. 201.) Section 761 of the Judiciary Lavr {former Code section 2273) is as follows : § 761. Oedep. to Shov/ Cause Defixed, — An order to show cause Is equivalent to a notice of motion ; and tlie subsequent proceedings thereupon are taken in the action or special proceeding, as upon a motion made therein. (1909 cfc. 35.) Apparently thereby the service is required to b© made upon the attorney. This provision, however, presupposes that the party still is represented hy the attorney when the order to show cause is made, but, if the attorney's authority has ceased, service upon him is ineffectual {Keller v. Keller, 100 App. Div. .325, 91 Supp. 528) ; and, as a general thing, such authority ends when the final judgment or decree in the action or special proceed- ing is rendered. It is true that in Pitt v. Davison, (37 N. Y. 235) and Isaacs v. Calder (42 App. Div. 152, 59 Supp. 21) the order was served upon the respondent's attorney after final judgment and the service was held sufficient; but in each case the attorney had appeared for his client in proceedings taken lipon and after the judgment, and thus his authority was es- tablished. A part;^ cannot object to the service where th6 br- Ch. 12, § 338. DECREES AND ORDERS. 337 Same Subject: Return of Order to Show Cause. der is served upon his attorney who has appeared for him in the proceedings taken subsequent to the judgment or decree. (Hart V. Johnson, 43 Hitn 505, 7 ^t. Rep. 133.) It is only where the authority of the attorney to appear after the final judgment or decree is not shown or is disclaimed that a ques- tion may arise. inasmuch as the authority of an attorney, who has repre- sented a party in a special proceeding in the Surrogate's Court, ends with the decree, the only safe practice is to make service upon the party himself. Moreover, it is questionable whether the rule regulating service of the order to show cause, where the proceeding i,'; before the Supreme Court or County Court, is applicable in the Surrogate's Court; for section 2528, authorizing a party to appear therein by attorney, expressly excepts " a proceeding to punish him for contempt." Section 328.— Same Subject : Return of Order to Show Cause. Section 772, of the Judiciary Law, a re-enactment of former Code section 2283, is as follows: § 772. PiixisiniEXT rrox Hetuex of Oedee to Show Cau.se. — Upon the re- turn of .in order to sho-,v cause, the questions which arise must be determined, as upon any other motion ; and. if the determination is to the effect specified in the last section but one (§ 770), the order thereupon must be to the same effect as the final order- therein prescribed. Upon a certified copy of the order so made, the offender may be committed without further process. (1909 cJi. 35.) The reference is to section 770 {Judiciary Law) which pro- vides that " if it is determined that the accused has committed the offence charged ; and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court, or before the judge or referee; the court, judge, or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires." {See sec. r33i post.) And so, before the final order, thus authorized by the Judiciary Law (§§ 770 d 772), can be made, there must be a determination by the surrogate or the Surrogate's Court "that the accused has committed the offence charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights' S38 PART I : GENERAL PROCEDURE. Ch. 12, § 339. Same Subject : Proceedings upon Return of Order. or remedies of a party" to the special proceeding; and upon such determination the surrogate may make a final order which must show that such a determination, or adjudication, was actually made. [FiseJier v. 'Baah, 81 ^Y. Y. 235; Sandford V. Sandford, 40 Hun 540; Hollij Mfg. Co v. Vernier, 74 Hun 458, 26 Sitpp. 581, 57 St. Rep. 230, aff'd 143 X. Y. 639 ; Daileij V. Fenton, 47 App. Div. 418, 62 Sapp. 337; Matter of Ryan, 73 App. Die. 137, 77 Sirpp. 132; Schweig v. Schweig, 122 App. Z)('f. 787, 107 .S'/^pp. 905; O^oermeyer d Liebman v. Adisky, 123 .Ipjv. D/r. 272,- 1((7 »S'i/i';p. 9-19; Matter of Jones, 126 App. Div. 112, 110 *Sf;(pp. 565.) The Judiciary Law (§ 770; former Code section 2281) pro- Tides for a final order v/here the accused is brought into court by an attachment, as authorized by subdivision 2 of section 757 {fooncr Code section 2269) ; and in such case, where it directs that he be punished, " a warrant of commitment must issue accordingly." But where the proceeding has been instituted by an order to show cause, as authorized by subdivision 1 of section 757 {former Code section 2289), the final order is made under "'Section 772 {former Code section 2283) and no warrant of commitment need be issued ; but " upon a certified copy of th6 order so made, the offender may be committed, without further process." [People ex. rcl. Post v. Grant, 50 Hun 243, 3 Supp. 142, 20 St. Rei). 48.) The final order must state clearly the act to be performed, and the amount of money to be paid, so that the sheriff may know when the delinquent is entitled to be released {People ex rcl. Post v. Grant, 50 Hiin 243, 3 Supp. 142, 20 St. Rep. 48; Burnham v. Denilce, 53 App. Die. 407, 65 Supp. 1028) ; and these matters must be determined judicially. {Dejonge v. Brenneman, 23 Hun 332.) Section 329.— Same Subject : Proceedings upon Return of Order. As already noted (sec. 325 ante), the order to show cause " is equivalent to a notice of motion ; and all subsequent pro- ceedings are taken in the action or special proceeding, as upon a motion made therein." Moreover, '' upon the returii of the 1^ Ch. 12, § 83^ DECREES AND OEDERS. 339 Same Subject :JReturn of Order to Oliuii' Caiiff^ order to show cause, the questions which arise must be deter- mined as upon any other motion." (§ 772; see sec. 328 ante.) So, upon the return day of the order, the respondent may file answering affidavits denying any allegations in the moving papers, or setting up any matter tending to show that he has not been guilty of the alleged offence or to Justify or excuse his conduct, or in any wiKg constituting his defense; and thereupon the surrogate must deteraiine the question of fact from the affidavits filed. Moreover, as authorized by section 1015, the surrogate may of his own motion, or upon the appli- cation of either party v/ithout the consent of the other, direct a reference to determine and repoi't upon any question of fact arising upon the application; and by section 2546 he is au- thorized " to appoint a referee to take and report the evidence upon the facts, or upon a specific question of fact." It is cus- tomary to have such a reference, where material allegations of fact are disputed. {People ex rcJ. Alexander v. Alexander, 3 Hun 211, 5 Thomp. cG Cook, ■2p ; Davies v. Davies, 20 Ahh. N. C. 170 ; Matter of Steinert, 24 Hun 246 ; Aldinger v. Pugh, 57 Hnn 181, 10 Suj)p. 684, 32 St. Rep. 513, aff'd 132 :\\ Y. 403.) By the Judiciary Law (§ 7Q9 -Jornier Code section 2280) it is provided thalt " either party may produce affidavits or other proofs contradicting or _cprroborating any answer " and that " upon the original affidavits, the answers, and subsequent proofs, the court, judge, or referee must determine whether the accused has committed the offence charged " ; but this section has reference to a proceeding commenced ly attach- ment and not to one instituted by an order to show cause. The present discussion is confined to the enforcement of a decree of a Surrogate's Court directing the payment of money or requiring the performance of any other act " by punishing the delinquent party " for a contempt of court " as provided by section 2555 ; and, in every case of this sort, the offence is the " refusal or wilful neglect " of the party to pay the money, or perform some other act, directed by tJie decree. The proceed- ings, therefore, are remedial rather than punitive; and where a fine is imposed upon a person adjudged in contempt its pur- pose is to indemnify the aggrieved party for his loss or injury together with the costs and exp«nses incurred by hiin in vin- 840 PART I : GENERAL PROCEDURE. Ch. 12, § 339, Same Subject; Proceedings upon Return of Order. dicating his rights {King v. Flynn, 37 Hiin 329), and so the amount of the fine, which properly may be imposed, is based upon proof of damages actually sustained. (Moffat v. Her- man, 116 N. Y. 131.) This is obvious from the following pro- visions of the Judiciary Law — a re-enactment of former Code section 2284: . § 773. AMor'NT OF Fine. — If an actual loss cv injury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a line constituto a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it Is not shown that such an actual loss or injury has been produced, a fine must be imposed, not escefOing the amount of the complainant's costs and expenses, and two hundi-ed and fifty dollars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed iin this section. (1900 ch. 3o.) If the decree directs the payment of money, the fine should equal the amount which the delinquent has failed to pay {Matter of Morris, 4.5 Han 187, 10 St. Rep. 50; Matter of Snyder, 103 X. Y. 178; Slattcr of Gosl^n, 95 App. Div. 407, 88 Supp. 670, aff'd 180 X. r. 505) ; and the fine, when collected, IS " paid over to the aggrieved party, under the direction of the court." (§ 773 supra.) This rule has been applied in the case of an executor, who, to the detriment of creditors, refused to account for personal property specifically bequeathed to him; and he rightly was fined an amount equal to the value of such property. {Matter of Pyc, IS App. Div. 306, 46 Supp. 350, a^'c? 154 TV. r. 773.) Where the offence consists of a refusal or wilful neglect to do something other than to pay money, and it is not shown that actual loss or injury has been caused thereby, the offender may be imprisoned until he shall have done the thing required; but usually no fine is imposed in excess of such costs of the proceedings as may be awarded to the aggrieved party. {De3^onge v. Brenneman, 23 Hun 332; Fall Brook Goal Co. V. Hecksher, 42 Hun 534, 4 St. Rep. 657.) No allow- ance of an arbitrary gross sum, by way of fine, is permissible without proof of actual loss or injury. {King v. Flynn, 37 Hun 329; Mutual Milk & Cream Go. v. Tietjcn, 73 App. Div. 532, 77 Supp. 287.) The duration of any imprisonment by Ch. 12, § 330. DECREES AND ORDERS. %tl Form : Order Punishing for Contempt. which the delinquent may be punished is regulated by the fol- lowing provision of the Judiciary Law — a re-enactment of former Code section 2285 : § 774. LexfiTH of Impeisoxmbxt. — Wlere the misconduct proved consists of an omission to pertcrm an act or duty, which it is yet in the power of the offender to perform, he shdU be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order, and the 'vvarrant of commitment, if one Is issued, must specify the act or duty to be performed, and the sum to be paid. In every other case, whore special provision is not otherwise made by law, the offender may be imprisonpd for a reasonable time, not exceeding six months, and until the fine, if any, is paid ; and the order, and the warrant of commit- ment, it any, must specify the amount of the fine, and the duration of the im- prisonment. (1009 ch. 35.) Section 330.— Form : Order Punishing for Contempt. At a Surrogate's Court, in and for tlie County of , held at the Office of the Surrogate in the City of ., N. y., on the day of ,. ., 19. .^ Present, Hon , Surrogate. {Title of Proceeding.) Upon the decree of this Surrogate's Court, duly made and entered in the above entitled special proceeding and recorded in the office of our surrogate of county, on the day of , 19.., whereby the account of (X. Y.) as executor of the last will and testament of , deceased was judicially settled and whereby it was, among other things, adjudged and decreed that said X. Y. forthv/ith pay to the sum of dollars and cents ($ ), being the amount that he is entitled to receive in payment of a legacy given to him by said last will and testament of , deceased; (or otherwise briefly recite money directed to 6e paid or act required to 6e performed by decree;) and Upon reading and filing the affidavit of said vei'i- fied on the day of ,19.., v/hereby it appears that said decree was duly made and entered as aforesaid, and that a certified copy thereof was duly and personally served upon said X. Y. at in the county of , N. Y., on the day of , 19. ., and that at the same time and place, payment of said sum of money, so directed to be paid to said , was duly and personally demanded of said X. Y.; and that said X. Y., notwithstanding such demand and such service upon him of a certified copy of said decree, refuses or wilfully neglects to obey the same and has wholly neglected and failed to pay over said sum of money to ; so adjudged and decreed to be paid over to him as aforesaid, or any part thereof; (and, whereby it also appears that said decree was duly docketed in, the offlcg^ 343 PART I ; GENERAL PROCEDURE. Ch. 13, § 830, Form : Order Punishing for Contempt. of the clerk of county, on the day of 19. ., and execution was issued thereon to the sherifC of said county, where said X. Y. then resided and still resides, but that such execution has been returned wholly unsatisfied, and that no part of the amount adjudged to said py said decree has been paid to him by said X. Y.; {or otherwise recite facts constituting the contem-pt as disclosed by the affidavit;) and upon the order to show cause, heretofore granted by our surrogate theieon, directing said X. Y. to show cause before this Surrogate's Court, now and here, why he should not be punished for his refusal or wilful neglect to obey said decree as aforesaid, and why said should not have such other and further relief in the premises as may be just and proper, together with the costs of this motion; and upon due proof of the personal service of said affidavit and order to show cause upon said X. Y. on the day of , 19. ., as directed in said order; (and upon reading and filing set out papers read in opposition, if any) and on motion of Esq., attorney for said after hearing , Esq., attorney for X. Y. in opposition thereto. It is hebeby okdebed, adjudged and deteemined that said X. Y. is guilty of a contempt of court in that he has refused and wilfully neg- lected to obey said decree of our Surrogate's Court entered herein (m the day of , 19.., directing him to pay the sum of dollars and cents ($ ) to said ; and that said offence was calculated to, and actually did, defeat, impair, impede and prejudice the rights and remedies of the said herein, to his actual loss and injury in the sum of dollars and cents ($ ), being dollars and cents ( $ ) , the ariiount directed to be paid to said by said decree, together with interest thereon from the day of , 19.., and dollars and cents ($ ), which is hereby allowed to said as the co^s of this l)roceeding; and It is further ordered and adjudged that said X. Y., for said mis- conduct and contempt of court be, and he hereby is fined the said sum of dollars and cents ($ ), to be paid to ^said , or to Esq., his attorney; and 'that said X. Y. be imprisoned in the common jail of county until he shall have paid said sum of i dollars and cents (? ), as aforesaid; and, to that end. It is further ordered that the sheriff of the county of be, and he hereby is, commanded to take the body and person of said X. Y. and detain him in the common j?iil of said county of until he „ shall have paid said sum of dollars and cents ($'.:......), in the manner aforesaid, together with the Sheriff's fees herein; 'oi' until the further order of this court Surrogate of „ county. Ch. 13, §831. DECREES AND ORDERS. 343 Contempt Proceedings under a Warrant of Attachment. Where the contempt proceeding is under an order to show cause, as provided by subdivision 1 of section 757 of the Judi- ciary Law, the offender may be committed upon a certified copy of the final order directing that he be punished ; and no warrant of commitment thereon is required. {Judiciary Law, § 772; see sec. 328 ante.) Section 331.— Contempt Proceedings under a Warrant of Attachment. The procedure under an order to show cause usually is adopted in the Surrogate's Court to enforce a decree, by punishment for contempt of court, as authorized by Code sec- tion 2555 ; but, as sometimes it may be desirable to proceed by warrant of attachment, an outline of the practice is given. The surrogate upon being satisfied by affidavit of the com- mission of an offence, which brings" the case within the pro- visions of Code section 2555, may, as authorized by the Judic- iary Ijaw — a re-enactment of subdivision 2 of former Code sec- tion 2269— Issue a warrant of attachment, directed to the sheriff of a particular county; or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge; either forthwith, or at a time and place therein .specified, to answer for the alleged offence. (1909 ch. 35, § 757 sui. 2.) Sometimes a preliminary order is made directing the attach- ment to issue ; but this is neither required nor advisable. If the attachment be directed to the sheriff of a county named there- in, and to the sherifl' of any county where the accused may be found, it may be executed by a sheriff other than the one named {People ex rel. Duff us v. Brown, 46 Hun 320, 12 St: Rep. 454) ; but the warrant must be returnable before the sur- rogate who issued it. {K&lly v. McCormich, 28 2V. Y. 318.) The Judiciary Law has this definition — a re-enactment of the last sehtence of forni&r Code' section 2273: § 7612. Wabkaxt or Attachment Dispised.— -A warrant of attachment Is a mandate, whereby an orlgihal special proceeding is instituted against the ac- cused, in behalf of the people, upon the relation of the complainant. (1909 ch. 35.) After the warrant has been issued all subsequent afSdavits, orders and papers should be entitled accordingly, e. ff., The' 344 "" " '^, PART I : GENERAL PROCEDURE. Ch. 13,_ § 331. Contempt Proceedings under a Warrant of Attachment. People of the State of Xew York on the relation of A. B. vs. C. D. In this respect the practice under a warrant of attach- ment differs from that under an order to show cause, which is but a continuation of the original special proceeding. The surrogate in his discretion, by an endorsement upon the warrant of attachment, may " fix a sum in which the accused may give an undertaking for his appearance to answer " (§ 764; former Code section 2275) ; and '' a copy of the war- rant, and of the affidavit upon which it is issued, must be served upon the accused, when he is arrested by virtue ' thereof." (§ 763; former Code section 2274.) The execution of the warrant is regulated by the following provision of the Judiciary Law — a re-enactment of former Code section 2276 : § 765. Execution of Waebant when Unceetaking not Given. — If an in- dorsement is not made upon tlie warrant, as prescribed in the last section ; or if sucli an indorsement is made and an nndertaliing is not given, as prescribed in the next section ; tbe sheriff, after making the arrest, as required by the war- rant, must keep the accused in his custody, until the further direction of the court. Judge, or referee. Where, from sickness or any other cause, the accused is physically unable to attend before the court, judge, or referee, that fact is a sufflcjent excuse to the sheriff for not producing him as required by the warrant. In that case, the sheriff must produce him, as directed by the court, judge, or referee, after he becomes able to attend. The sheriff need not, in any case, confine the accused in prison, or otherwise restrain him of his liberty, except as far as it is necessary so to do, in ordef to secure his personal attendance. (1009 ch. 35.) An undertaking, to procure a discharge of the accused, is provided for by this section of the Judiciary Law — a re-enact- ment of former Code section 2277 : § 766. Undeetaking to Peoccee Dischaege. — Where an Indorsement is made upon the warrant, as prescribed in the last section but one (§ 764), the accused mvist be discharged from arrest, upon his executing and delivering to th'B sheriff, at any time before the return day of the v.-arrant, an undertaking to, the people, in the sum specified in the indorsement, with two sufficient sureties, to the effect that he will appear, at the time when, and the place where, the warrant is returnable, and then and there abide the direction of the court, judge, or referee, as the case requires. The officer taking the acknowledgment of the undertaking must, if the shferiff so requit'es. 'examine under oath, to a reasonable extent, the persons offered as sureties, concerning their property and circumstances. (1909 ch. 35.) The Judiciary Law has the following requirements also : If an undertaking be takeii by the sheriff, or other oflflcer who executes the warrant, it must be filed with the return (§ 768; former Code section 2279.) Where the accused Ch. 12, § 331. DECREES AND ORDERS. 345 Contempt Proceedings under a Warrant of Attachment. already is in custody " by virtue of an execution against his person, or by virtue of a mandate for any otlier contempt or misconduct, or a commitment on a criminal charge, a war- rant of attachment cannot be issued " ; but in this case the Surrogate's Court, upon proof of the fact, may issue a wrir of habeas corpus directed to the officer, in whose custody the accused may be, requiring him to bring the accused before it to answer for the offence charged (§ 767; former Code section 2278), and, after the final order is made, the accused must be remanded to the custody of the officer to whom the writ was directed. (§ 771; former Code section 2282.) The proceedings upon the return of a warrant of attachment are regulated by these provisions of the Judiciary Law — a re-enactment of former Code section 2280 : § 769. IXTEEKOGATOHiES AXD Peoofs. — When the accused Is proauced, by Virtue of a warrant, or a writ of habeas corpus, or appears upon the return of a Warrant, the courf. judge, cr referee, must, unless he admits the offence charged, cause interrogatories to be filed, specifying the facts iind circumstances of the offence charged against liim. The accused must make written answers thereto, under oath, within such reasonable time as the court', judge, or leferee allows therefor; and either party may produce affidavits, or other proofs, contradicting or corroborating any answer. Upon the original affidavits, the answers, and subsequent proofs, the court, judge, or referee must determine whether the accused has committed the offence charged. (1909 ch. 35.) The interrogatories should be confined to the matter of the service of the decree, together with the demand where a demand is necessary, and to the acts of neglect or commission constituting the offence {Broicn v. Andreivs, 1 Barh. 227); and they are required only where these acts are denied or not admitted. (People ex rel. Childs v. CartwrigM, 11 Hun 362.) Besides his answers to the interrogatories, the accused ruay produce affidavits showing that he did not wilfully disobey the decree [People ex rel. Larocque v. Murphy, 1 Daly 462) ; and the^complainant may read affidavits contradicting the answers of the accused. (Smith v. Smith, Ip Abb't Pr. 130, 23 How. Pr, 134, aft'd 14 Abb't Pr. 468.) Moreover, either party may pro- duce " other proofs " by the testimony of witnesses whose at- tendance may be compelled by an order of the court or by subpoena. (People ex rel. Tuell v. Paine, 92 App. Div. 303, 86 Supp. 1109.) .Where the alleged misconduct is denied the affidavit by which 846 PART I: GENERAL PROCEDURK Ch. 13, § 831. Contempt Proceedings under a Warrant of Attacliment. the proceedings were instituted is not evidence but simply per- forms the office of a pleading or statement of the charges; and upon the trial of the issues, the common law rules of evidence must be observed. {Matter of Eldridge, S2 T. Y. 161.) This doctrine seems to be recognized by the Judiciary Law ( § 769 ; former Code section 2280) which provides that " upon the original affidavits, the answers, and subsequent proofs" it must be determined whether the accused has committed the offence charged. The rule in contempt proceedings is anal- ogous to that in prosecutions for crime; and the intent re- quired to be proven is not one to violate the decree, but merely an intent to " refuse or wilfully neglect " to pay the money or perform the act required by the decree. {Gage v. Denboto, 49 Eim 42, 1 Supp. 826, 17 St. Rep. 515.) If the determination be adverse to the accused the next step in the procedure is regulated by this provision of the Judiciary Law — a re-enactment of former Code section 2281 : § 770. Final Order Directing Punishment. — If It is determined that the accused has committed the offence cliarged ; and that it was calculated to, or actually did, defeat', impair, impede, or prejudice the rights or remedies of a party to an action or special proceediag. hrouglit in the court, or hefore Iho judge or referee ; the court, judge, or referee must make a final order accord- ingly, and directing that he be punished hy fine or imprisonment, or hoth, as the nature of the case requires. A warrant of commitment must issue accordingly. (1909 ch. 35.) It will be noted that the accused may not be committed upon a certified copy of th6 final order, as where the proceeding is based upon an order to show cause (see sec. 328 ante) ; but " a warrant of commitment must issue accordingly." Where the delinquent is brought up by a wri^ of ha'b&as corpus, his punishment, if any, is regulated by this provision of the Judiciary La'w — a re-enactment of former Code section •^282':. § 77i. Punishment Upon Return of HABE.is Corpus. — Where the accused is brought up by virtue of a writ of habeas corpus, he must, after the final order is made, he remanded to the custody of the sheriff, or other officer, to whom the writ was directed. If the final order directs that he be punished by imprisonment, or committed until the payment of a sura of money, he must be so imprisoned or committed, upon his discharge from custody under the mandate, by virtue of which he is held by the sheriff, or other officer. (1909 c7i. 35.) The same provisions govern the amount of the fine (§ 773"; former Code section 2284), and the length of Imprisonment Ch. 13, § 333. DECREES AND ORDEES. 347 Wlten Court may Release Imprisoned Delinquent. '(§ 774; former Code section 2285), as in a case where the pro- ceedings are commenced by cm order to shoiv cause. {Sec sec. 329 ante.) Where a person arrested on a warrant of attachment has given an undertaking for his appearance, but fails to appear accordingly, the Surrogate's Court " may either issue another wfirrant, or make an order directing the undertaking to be prosecuted ; or both." (Jncliciari/ Law, § 777 ; former Code sec- tion 2288.) The prosecution of the. undertaking is regu- lated by this provision of the Judiciary Law — a re-enactment of former Code section 2289 : § 778. Peosbcution of Undebtakino by Pbeson Aggeibved. — The order directing tlie undertalilng to tie prosecuted, may, in tlie discretion of tlie court, direct the prosecution thereof, hy and in the name of any party aggrieved l)y the misconduct of the accused. In such a case, the plaintili may recover damages, to the extent of the loss or injury sustained uy him, hy reason of the misconduct, together with the costs and expenses of prosecuting the special proceeding in which the warrant was issued ; not exceeding the sum specified in the undertalsing. (1909 cli. 35.) If the sheriff has accepted an undertaking, with insufficient sureties, he may become personally liable under these pro- visions of the Judiciary Law — a re-enactment of former Code section 2291 : § 780. Sheriff Liable fok T-vkixg Ixsufficiext Sueeties. — After the re- turn of an execution. Issued upon a Judgment, rendered in an action upon the undertaljing, an action, to recover the amount of the judgment, may be main- tained against the sheriff, where it appeals that, at the time when the under- taliing was given, the sureties were insufHcient, and the sheriff had reasonable grounds to doubt their sufaciency. Such an action may be maintained by the plaintiff, in whose favor the Judgment was recovered. If the people were plaintiffs, the action must bo prosecuted by the Attorney- General or the district attorney ; and any money collected therein must be dis- posed of, as prescribed in the last section. (1909 ch. 35.) Section 332.-:-When Court may Release Imprisoned Delin- quent. Where, in enforcing a decree by contempt proceedings, the ofifender has been imprisoned but " is unable to endure the imprisonment, or to pay the sum, or perform the act or duty, required to be paid or performed, in order to entitle him to be released ", the Surrogate's Court may, in its " discretion, and upon such terms as justice requires, make an order, direct- ing him to be discharged from the imprisonment " (Judiciary Law § 775; former Code section 2286) ; but there is no in- 848 PART I : GENERAL PROCEDURE. Ch. 12, § 333, Appeal : Stay of Proceedings Thereon. herent power in tbe court to release him merely as a matter of grace or mercy. {Moore v. Mcj'"'' ' "') Hun 44; Matter of Canakos, 60 3Ii£c. 63, 111 Supp- 601.) If tlie prisoner can- not comply wiili Ihc decree, his remedy is by an application for relief under section 775 of the Judiciary Law (former Code section 22S3), and not by writ of certiorari or habeas corpus {People ex rcl. Borst v. Grant, 41 Hun 351, 2 St. Rep. 5D2). nor by appsal from the order of commitment {Matter of Strong, 111 /i;;p. Div. 2S1, C7 Sii'pp. 459) ; and the application should be on notice to the adverse party. {Stroiridge v. Strohridge, 21 Hurt 288.) It already has been noted that these contempt proceedings arc remedial rather than punitive in character — their purpose being to enforce the decree {see sec. 329 ante) ; and if it be made to appear that, for any reason, ' they necessarily will be ineffectual, the discretion of the court should be exercised in favor of the offender. When, therefore, the delinquent's failure to comply with the decree results from his inability to obey it, he may be discharged. {Cochran v. Ingersoll, 13 Hun 368; Doran v. Dempsey, 1 Brad. 490.) However, the offender should not be released upon his mere promise to pay {Matter of l^te.inert, 29 Hun 301), nor just because he has been adjudicated a bankrupt {Matter of Col- lins, 39 Misc. 753, 80 Supp. 1119) ; and the burden of proof is upon him to establish his inability to obey the decree. {Matter of Strong, 111 App. Div. 281, 97 Supp. 459.) In Moore v. McMahon (20 Hun 44) Judge Barrett^ writing for the court, said, of a similar provision in section 302 of the original Code of Procedure, that, in using the words " iu- ability to endure the imprisonment " i The statute contempMes something in the nature ot a slow wasting, a steady diminution of the vital forces, tendin'^, unless arrested by sunlight, open air, proper exercise and the enjoyinent of freedom, to a complete destruction of the constitlttion, and, as a not remote con- sequence, death. Section 333.— Appeal : Stay of Proceedings Thereon. An appeal to the Appellate Division may be taken from an order or a decree of the Surrogate's Court adjudging sjujj Ch. 13, § 334. DECREES AND ORDERS. Enforcement of Decree by Action on Ofladal Bond. person guilty of contempt of court and punishing him by fine or imprisonment, or both. (See § 2570.) Where the decree or order directs " the commitment of am, executor, administrator, testamentary trustee, guardian, or other person appointed l^y the Surrogate's Court, or of an attorney or counsel employed therein, for disobedience of a direction of the surrogate, or for neglect of duty," the appeal does not stay its execution, unless the appellant gives an undertaking, with at least two sureties, In a sum therein speclflod. to the effect that, if the decree or order appealed from, or any part thereof, is atFirmed, or the appeal is dismissed, the appellant will, within twenty days after such affirmance or dismissal, surrender himself. In obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to he committed. (See sec. 369 post.) And if the undertaking be broken it may be prosecuted, for the benefit of the person aggrieved, " in the same manner, and with the same effect, as an administrator's ofiflcial bond" (§ 2579; see sec. 369 post) ; but where the decree or order directs the commitment of a person other than one specified in section 2579, it seems that a perfected appeal therefrom will stay its enforcement. (§ 2584; see sec. 382 post.) Such an undertak- ing remains in force after an affirmance by the Appellate Divi- sion, even though an appeal be taken to the Court of Appeals ; and upon such an appeal no further undertaking is required to stay proceedings, except the one necessary to perfect the appeal. [Matter of Pye, 21 App. Div. 266, 47 Supp. 689.) Section 334. —Enforcement of Decree by Action ori Official Bond. In certain cases a decree may be enforced, also, by an action upon the official 'bond of an executor, administrator, testa- mentary trustee or guardian ; and this remedy is regulated by the following three sections: § 2607. Whex Boxd May be PkQsecij-ted. — Where an execution, issued upon a surrogate's decree, against th« property of an executor, administrator, testa- mentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action, to recover the sum remaining uncollected, may be maintained upon his o£Scial bond, by and in the name df the person in whose favor the decree was made. If the principal debtor is a resident of the State, the execution must have been issued to the county where he resides. (1880 ch. 178.) § 2608. SuccESSOB May Peosecute OFnciAL Bond. — Wliere letters have been revoked by a decree of the Surrogate's Court, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an 850 - PART I : GENERAL PROCEDURE. Ch. 13, § 884, Enforcement of Decree by Action on OfScjial Bond. action upon his predecessor's official bond, in whicli he may recover any money, or the full value of any other property, received hy the principal in the bond, and not duly administered by him ; and to the full extent of any injury, sus- tained by the estate of the decedent or of the infant, as fhe case may be, by any act or omission of the principal. The money, recovered in such an action, is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise disposed of. accordingly ; except that a recovery for an act or omission, respecting a right of action, or other property, appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person, is fau the benefit of tlie person or persons so entitled thereto. (1880 ch. 178.) § 2609. Action on Official Bond Whex no Succbssoe Appointed. — Where the letters of an executor or administrator have been so i'€voked, and no suc- cessor is appointed, any person aggrieved may, upon obtaining an order from the surrogate, granting him leave so to do. maintain an action upon the official bond of the executor or administrator, in behalf of himself and all others interested ; in which the plaintiff may recQver any money, or the full value of any other property, received by the principal in the bond, and not duly adminis- tered by him, and to the full extent of any injury, sustained by the estate of the decedent, by any act or omission of the principal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it, into the Surrogate's Court ; and the surrogate must distribute it to the creditors or other persons entitled thereto. The proceedings for such a distribution are the same as prescribed In title fifth of this chapter, for the distribution of the proceeds of a sale of real property. (1880 ch. 178.) A decree revoking the letters of an executor, administrator or guardian may require him to account for and " to pay and deliyer over all money and other property " held by him in his representative capacity (§ 2603) ; and in practice usually it so orders. It will be observed that section 2608 applies only to " the executor, administrator, or guardian, whose letters are so revoked," and that the application of section 2609 is limited to "an executor or administrator;" but, although neither section mentions a testamentary trustee, it has been held, that, on the removal of such a trustee, an action may be maintained against the sureties on his bond. {Yates v. Thomas, 35 Misc. 552, 71 Supp. 1113.) The return of an execution unsatisfied is not a prerequisite to an action under either section 2608 or section 2609 [Hood V. Hayward, 124 T. T. 1) ; and leave of the surrogate is not necessary, except where the action is brought under section 2609. (8c\)field v. Adriance, 1 Deni. 196.) ^v'or is a pre- liminary execution required where the decree has been rendered upon an accounting by the executor or administrator of a de- ceased executor, administrator, testamentary trustee or guardian (Van Zandt v. Grant, 11 o N. Y. 150) ; for it is pro- vided in section 2606 : Ch. 12, § 335. DECREES AND ORDERS. 35J i — wi m iLi_jiiwiwW[in'~t"i ~.— JT. Intermediate Order: How Enforced. With respect to the liability of the sureties in and for the purpose of main-, taining an action upon the decedent's official bond, a decree against his executor or administrator, rendered upon such an accounting, has the same effect as if an execution issued upon a surrogate's decree against the property of decedent had been returned unsatisfied during the decedent's lifetime. (See sec. And where an administrator, having appropriated to his own use property belonging to the decedent, had removed to another State and there died, it was held that his successor need not obtain leave of the court before bringing suit against the sureties on his bond. (Dunne v. American Surety Co., 43 App. Div. 91, 59 8upp. 429 ; see s. c, 34 Misc. 584, 70 Supp. 391.) The general rule is that the decree of a Surrogate's Court binds the sureties on the bond of an executor, administrator, testamentary .trustee or guardian, because, by their contract, they are privy to the proceedings against their principal; and, when he is concluded, they, in the absence of fraud or collusion,, are concluded also. (Scofield v. Churchill, 72 N. Y. 565; Douglass v. Ferris, 138 N. Y. 192; Altman v. Hofeller, ^152 N. Y. 498; Johnston v. Smith, 25 Hun 171; McMahon, (Eeegan) v. Smith, 24 Ajyp. Div. 25, 49 Supp. 93; Van Zandt V. Grant, 67 App. Div. 70, 73 Supp. 600, afd 175 N. Y. 150.) And, where a default of the principal is caused by his insolv- ency and his resultant inability to pay his own deMs to the estate, the sureties may show that fact as a defense; but the burden of proof i.s upon them to establish it affirmatively. (See sec. 3i^ante; Keegan (McMahon) v. Smith, 60 App. Div. 168, 70 Mpp. 260, aff'd 172 N. Y. 624.) It is provided in section 2555, regulating the enforcement of a Surrogate's Court decree by punishment for contempt: If the delinquent has given an official bond, his imprisonment, by ■ virtue of proceedings to punish him for a contempt, as prescribed in this section, or a levy upon his property by virtue of an execution, issued as prescribed in the last section, does not bar, suspend, or otherwise affect an action against the sureties in his official bond. (See sec. 3'17 ante.) Section 335.— Intermediate Order : How Enforced. " A direction of a Surrogate's Court, made or entered in writing, and not included in a decree, is styled an order. It may be enforced in like manner as a similar order, made by the Supreme Court in an action ; and the costs are the same as upon such an order, and may be collected in like manner." PART I : GENERAL PROCEDURE. . Ch. 13, § C33, ; ^ Same Subject: Order Enforced by Contempt Proceedings. (§ 2556; see sec. 299 ante.) Such an order of the Surrogate's Court, as distinguished from the final order, or a decree, de- fined in section 2550, corresponds to an order made hy the Supreme Court in an ac tion, as defined by section 767 ; and as " the costs are the same as upon such an order " they may be only a sum fixed by tlie surrogate " not exceeding ten dollars, besides necessary disbursements for printing and referee's fees." (§ .3251.) The collection of these costs, like the collec- tion of costs awarded by an order of the Supreme Court in an action, is regulated by section 779. (/See sec. 293 VLnte.) The payment of costs awarded by an order cannot be en- forced by contempt proceedings, except as authorized by former Code section 15 now re-enacted in section 20 of the Civil Eights Law (1909 ch. 14; see Matter of Eurfifreville, 154 N. Y. 115; Matter of Bannincj, 108 App. Div. 12, 95 8upp. 467) ; but they may be collected by execution. [Matter of Hirsch, 185 N. Y. 598; Matter of Lippincott, 5 Dem. 299.) Section 336.— Same Subject : Order Enforced by Contempt Proceedings. Although section 2555, authorizing the enforcement of a decree by contempt proceedings, has no application to an in- termediate order, nevertheless the Surrogate's Court has power to enforce such an order, " in like manner as a similar order made by the Supreme Court in an action ", may be enforced by that court. (§ 2556.) Moreover, the surrogate, in court or out of court, as the case requires, expressly is authorized by section 2481: 7. To punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner. (See sec. 73 ante.) Section 753 of the Judiciary Law (former Cdde section 14)' enumerates the cases wherein " a court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct by which a right or remedy of a party to a civil action or special proceeding, pend- ing" in the court may be defeated, impaired, impeded, or prej- udiced " ; and among those cases is " disobedience to a lawful mandate of the court"; and also under subdivision 8: 8. In any other ease, where an attachment or any other proceeding to punish"' Ch. 13, § 337. DECREES AND ORDERS. 358 "•I ll1llllllllillllllill|IIIIBIIIIIiyi«llllllWIIMIIIWilllllllllll|h|l»|ilMIII>lt«IIIMiMll'l>'ilW'»'lllltlMI«HIIIWIIIWI«W)IHIIIlMl|lllllliilli ml III! I Authority of Surrogate's Court over its Decrees and Orders. for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party. (1909 cJi. 313, § 7.j3.) These provisions apply to the SuiTogate's Court; and, by appropriate contempt proceedings, it has ample authority to enforce its orders. (§ 2556.) Thus it has been held that an executor properly is punished for contempt of court, where he refuses to appear before the surrogate and answer in obedience to an order requiring him to show cause why a collateral in- heritance tax should not be imposed upon the estate {Matter of Pelton, 57 Hun 590, 10 Supp. 642, 32 St. Rep. 924), or where he disobeys an order requiring him to file an account of his proceedings. (Matter of People's Trust Co., 37 Misc. 239, 75 Supp. 254.) In the latter case, however, it may be that the order disregarded by the executor should be considered a decree. Where an order of the surrogate or of the Surrogate's Court is to be enforced by punishing an offender for a contempt o court, the same practice may be followed as upon. the enforct ment of a decree by contempt proceedings under section 255E Section 337.— Authority of Surrogate's Court over its Decree and Orders. A surrogate, in court or out of court, as the case requires has power '• to open, vacate, modify, or set aside, or to entei as of a former time, a decree or order of his court ; or to gran a new trial or a new hearing for fraud, newly discovere evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision, must be exercised only in like case and in the same manner, as a court of record and general jurisdiction exercises the same powers." (§ 248 sub. 6.) This provision is construed as though the semicolo: in the first sentence were a comma {Ohnsted_v. Long. 4 Den 4:4:, s. c, as Matter of Olmsted, 17 AWt X. C. 320) ; and it i held that the exercise of each of these powers is limited t cases of " fraud, newly discovered evidence, clerical error, other suflQcient cause." {Matter of Tilden, 98 -A'. T. 434 Matter of Hawleij, 100 X. Y. 206; Matter of Douglas. 52 Api Div. 303,' 65 Supp. 103.) Under settled rules of constructio: the words " or other suflScient cause " are interpreted to mea: S54 PART I : GENERAL PROCEDURE. Ch. 12, Limitation upon Surrogate's Powers— Unauthorized Order or Decree^ causes of like nature with those specifically named. {Matter of Tildeii, 98 N. Y. 434; Matter of White, 52 A pp. Div. 225, 65 Supp. 168; Matter of Bodine, 119 A pp. Dir. 493, 104 Siipp. 138.) The authority of a Surrogate's Court to modify or vacate its ov/n decree for an error in fact, newly discovered evidence, mistake, fraud, or any other cause extrinsic to the record, is ail inherent cue although subject to such restrictions as the LeglLurd-crc may bg8 fit to impose (Matter of Regan, 167 tV. Y. ;>;iS; Morgan v. Coicie. 49 App. Dir. 612, 63 Supp. 608) ; and, as moFt of the powers mentioned in this section were exer- cised by the surrogate prior to the Code, it has been held that these provisions are, to a large extent, but declaratory of the formar law. [Matter of Henderson. 157 .V. Y. 423, 427.) This subject has been treated hereinbefore in the chapter entitled " Jurisdiction of the Court " ; and reference thereto is made for a fuller discussion of it. (^ec sec 75 & 'jt ^ ante.) Section 338.— Same Subject : Limitation upon Surrogate's Powers : None as to Time. It will be observed that the only limitation upon the powers thug conferred I § 2481 suh. 6), is that tliey " must be exerciseii only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers." Eut the Court of Appeals has held that thereby no limitation of time has been placed upon the surrogate's exercise of these' powers (Matter of Henderson, 157 X. Y. 423; see Matter of Flynn, 136 X. Y. 287) thus overruling its former decisions in Matter of Tilden (98 X. Y. 434) and Matter of Hawley. (100 :V. r. 206.) Except as to time Uniitation, the practice in the Surrogate's Court, upon a motion for the relief authorized by subdivision 6 of section 2481, is the same as upon a similar application in the Supreme Court. (Matter of Kranz, \1 Hun 463, 3 St. Rep. 297; Matter of RicharS'son, 81 Hun 425, 30 Supp. 1008, 63 St. Rep. 201; and see sec. 75 ante.) Section 339.— Same Subject : Unauthorized Order or Decree. The Surrogate's Court not only has power but it is also its f Ch, 12, § 340. DECKEES AND ORDERS. 355 Same Subject: Who may Apply to open Decree^ y duty to vacate and expunge from its records any order or decree — or any part of an order or decree — made or entered without authority (Vrccdenburgh v. Calf, 9 Paige 128; Sea- man V. Whitehead. 78 .Y. Y. 30G; Matter of Vnderhill, 117 y. Y. 471; Matter of Armstrong, T2 App. Div. 286, 76 Supp. 37) ; and any decree unauthorized by the surrogate's decision may be opened and made to conform to it. {Matter of Rolert- son, 51 App. Div. 117, 64 Supp. 385, aff'd 165 X. Y. 675.) And where an order or decree has been made without juris- diction, that, in itself, is sufficient cause to vacate or expunge it from the records even though it be void and unavailable for anj'' purpose: it may he ,'8t aside or vacated by an order. (Schnettler v. Gardiner. 47 X. T. 404; Kamp v. Kamp, 59 X. Y. 212; Matter of UnderhiU, 117 .Y. Y. 471; Matter of Arm- strong, 72 App. Div. 286, 76 Sujjp. 37; and see sec. 76 ante.) Section 340. — Same Subject : Who may Apply to open Decree. It has been said that the power to open or vacate a decree, under subdivision 6 of section 2481, should be exercised only on behalf of a partij to the special proceeding {Matter of Tilden, 56 App. Die. 277, 67 Supp. 879; Estate of McCunn, 15 St. Rep. 712; see Matter of Killan, 172 .Y. Y. 547); but the rule seems to be that any person, even though not a party, who is concluded or aggrieved by the decree, may move to set it aside. The Surrogate's Court has the power of a court of general jurisdiction to vacate its own decree; and relief may be granted, as in the Supreme Court, " upon the application of any one for sufficient reason in furtherance of justice." {Matter of Flijnn, 136 -Y. Y. 287^ Matter of Regan, 167 2Y. I'. 338, 343; see Ladd v. Stevenson, 112 Y". Y. 325.) It has been the general practice to open a decree — so far as it concerns the petitioner- -upon the application of any person who should have been a party to the special proceeding but who ueithet appeared nor was cited therein. {Matter of Estate of Odell, h Misc. 390, 2/ Siijjp. i^ Matter of Harlow, 73 Hun 433, 26 Supp^ 469, 56 St. Rep. 33; llatter of Gall, 42 App. Div. 255, 5^ Supp, 254.) 856 PART I : GENERAL PROCEDURE. Ch. 12, § 341. ^ ^ ^ ^^^^ ^ ...^«iiuiii.iiM.iiiwiiiiiiM iiwiwiMii. ■■iiiiiMMiiiMiMNWiiiwi»iiiM»^i*irlhffBrrmrrr^ Proceedings to Open Decree or Order. Section 341.— Proceedings to Open Decree or Order. It is pro-sdded in section 2481 that the powers of the surro- gate " to open, vacate, modify or set aside, or to enter, as of a fortner time, a decree or order of his court, or to grant a new trial or a new hearing for fraud, newl^' discovered evidence, clerical error, or other .sufficient cause " as conferred by sub- division fi thereof " mu.st be exercised only in a like case and in the savw manner, as a court of record and of general juris- diction exercises the same powers." When this section was before the Court of Appeals in Matter of Henderson (157 X. r. 423, 428) Judge O'Brien, writing for the court, said that " in providing for the exercise of the power in the swme manner'', as in the Supreme Court, " all that is meant is that the surrogate shall proceed in the same icay to he.ar the appli- cation. Proof must be made, notice given and a judicial hear- ing of the parties had." In that case the surrogate had denied an application to open a decree made on an intermediate ac- counting by an executor; but the order of the surrogate was reversed by the Appellate Division, with ten dollars costs and disbursements (33 App. Dir. 545), and (7.s- order of reversal was affirmed by the Court of Appeals. The application was treated as a motion in a sprrial proceeding, and not as a dis- tinct proceeding. In Pease v. Egan (3 Bern. 320) it was held by Surrogate Rollins that the denial of an application to open a decree should be incorporated in an order and not in a decree; and that the maximum allowance of costs thereon is ten dollars and necessary disbursements — the learned surrogate saying;' The decree sought to be vacated was a final determi- nation, within the meaning of section 2550; but the refusal to disturb it must be incorporated in an order. •(§ 2556.) Section 2481, subdivision 6, prescribes the mode of exercise of the power that the petitioner here invoked. The iproced&re to be adopted is that which is-, in like cases, pursued in courts of record of general juris- diction, and in-«uch courts a proceeding to open a judg- ment is ordinfirily instituted by motion. The Code declares that 'the decision of the court denying such an application is a;n order, and that the application for the order is a motion. (§§ 767 & 768.) Ch. 13, § 342. DECREES AND ORDERS. 357 0.% Enforcement of Decree bjr Crimmal.FrQceedinga.-- In Cluff V. Tower (3 Dem. 253) the same learned surrogate held that a i)roceeding to set a.side an order under authority of section 2481, subdivision fi, " niav be begun by a notice of motion, or by an order to show cause " ; and this ruling was followed in Matter of Fillei/. (20 i^iipp. 427, 47 St. Rep. 43^.) Indeed it seems to be settled that an application to open, vacate, modify or set aside an order or decree, under section 2481, is a motion in the special pi-occeding itself, and the decision thereon is evidenced by an aider as distinguished from a decree, (flatter of Small, 1,58 .V. r. 128.) This is the proper practice also where the application is to enter a decree or an order nunc pro tunc, or to modify a decree for a clerical error, or to grant a new trial or a new hearing for any cause. But there may be case.?, as where it is sought to vacate a decree because made ivithout aathoritij, where the application may be a special proceeding terminating in a decree. {See Matter of Tilden, 98 If. Y. 434.) Section 342.— Enforcement of Decree by Criminal Proceed- ings. It seldom happens that the criminal laAv may be used to aid the collection of civil claims; but the Penal Law makes the conversion of trust funds by an executor, administrator, tes- tamentary trustee or guardian a kucenij; and it also provides that the offender * * * may te adjudged to pay a fine, not exceeding the value of tlae property so misappropriated or stolen, witb interest tlierpon from the time of the mis- appropriation, withholding, or concealment, and twenty per centum thereupon, in addition, and to be imprisoned for not more than Ave years in addition to the term of his sentence for larceny, according to this article, unless the ttne is sooner paid. • * • (1909 ch. 88 § 1302.) This flue, when paid, is " for the benefit of the person injured or defrauded, or whose property the offender took, misappro- priated or concealed, or his representative or assignee. These provisions are a re-enactment of an earlier statuto (1877 ch. 208; sec Penal Code, S ;o41) and furnish one of the few instances where a criminal statute is framed so as to be remedial as well as punitive. It happens usiifilly that the defalcation of an executor, ad- ministrator, testamentary trustee or guardian isestablishedj. 858 PART I : GENERAL PROCEDURE. Ch. 18, § 343. Eulorcemeut of Decree by Criminal Proceedings. among otliev things, by his disobedience of a decree or order of the SiuTogate's Court diiecting him to pay or deliver money or other property held by him in trust; and .sometimes these criminal proceedingi-; nmy be resorted to with advantage to enforce such a decrt;^ o-r order where other remedies are in- adequate^ — especially where the defaulting executor, adminis- trator, testamentary irui-te? or guardian has gotten beyond the jurisdiction of the Surrogate's Court by departing from the State. CHAPTER XIII. APPEALS. Section 343. Preliminary. 344 Appeal to Appellate Division of Supreme Court. 345. An Order must Affect a " Substantial Right " to be Ap- pealable. 346. Same Subject: Some Non-appealable Orders. 347. Ex Parte Orders not Appealable. 348. Discretionary Orders: When Appealable. 349. No Appeal from Decision. 350. Intermediate Order may be Reviewed with6ut Separate! Appeal. 351. Only Party Aggrieved may Appeal. 352. When Person not a Party may Appeal. 353. Death of Party before Appeal. 354. Special Guardian for Infant' Party may Appeal. 355. When Appeal from Decree Prdbating a Will should not be Taken. 356. Parties to Appeal: Bringing in Parties. 357. Appeal where Adverse Party has Died. 358. Designation of Parties to Appeal: Title of Cause. 359. Time within which Appeal may be Taken. 360. Form: Notice of Entry of Order or Decree to Limit Time for Appeal. 361. Appeal: How Taken. 362. Substituted Service of Notice of Appeal. 363. Form: Notice of Appeal. 364. Form: Affidavit by Person, not a Party, who' Appeals. 365. Security to Perfect Appeal. i 366. No Stay Whatever in Certain Cases. 367. When Issuance of Letters is not Stayed. 368. Security for Stay where Decree is for Money or Property." 369. Security for Stay in Contempt Proceedings. 370. Amount of Undertaking. 371. Requisites and Effect of Undertaking: Action thereon. 372. Form: Undertaking to Perfect Appeal. 373. Form: Undertaking to Stay Execution of Decree. 374. Form: Undertaking for Stay in case of Commitment. 375. Deposit in Lieu of Undertaking. 376. Security may be Waived. 377. New Undertaking to be Given when Sureties are Insolvent.' 378. Action on Undertaking. 359 PART I : GE Preliminary, A Section 379. Proceedings where Party Dies Pending Appeal. 380. Order of Substitution. 381. Certain .Defects may be Remedied. 382. When Appeal Perfected and Proceedings Stayed. 383. Certain General Provisions of the Code made Applicable. 384. Appeal may be on the Law or the Facts. 38'5. Appeal from Decree upon Questions of Law. 386. Appeal from Decree upon Questions of Fact. 387. When Appeal must be Heard upon a Case Settled by Surrogate. 388. Making and Settling a Case. 389. Extension of Time by Order. 390. Certificate on Settlement of Case. 391. Appeal without a Case: What Question may be Raised thereby. 392. Record where Reference is had. 393. Record upon Appeal from Order. 3-94. Papers to be Transmitted to Appellate Division. 395. Powers of Appellate Division on Appeal upon Facts. 396. Other Specified Powers of Appellate' Division on Appeal. 397. Judgment or Order upon Appeal. 398. Jury Trial upon Reversal in Probate Cases. 399. Proceedings upon Decision by Appellate Division. 400. Proceedings when Appellate Court Awards Jury Trial. 401. Form: Order- of Surrogate on Remittitur of Appellate Court Directing Jury Trial. 402. Proceedings upon Verdict of the Jury. 403. Review of Jury Trial: Motion for new Trial. 404. Same Subject: In Probate Case. 405. Disregarding Errors on Motion for New Trial. 406. Motion on Judge's Minutes: How Made. 407. Motion on Minutes: If not Entertained by Trial Judge, 408. Appeal from Order Granting or Refusing New Trial. 409. Motion for New Trial In New York County. 410. Costs of Appeal. 411. Same Subject: On Jury Trial in Probate Case. 412. Same Subject: Amount of Costs. 413. Appeals to Court of Appeals. 414. Same Subject: Certain Orders not Reviewable. 415. Proceedings on Remittitur from Court of Appeals. 416. Enforcement of Decree or Order Appealed from: Resti- tution. Section 343.— Preliminary, Appeals from the decrees and orders of the surrogate and of the Surrogate's Court, are provided for and regulated in article Ch. 13, § 344. APPEALS. 361 4, title 2, of Chapter 18 o/ ifee Corfe (§§ 2568-2589), entitled •' Appeal " ; and the general provisions of chapter 12, relating to appeals in actions and special proceedings in other courts of record, do not extend to the Surrogate's Court except as made applicable by section 2575. {See Matter of Hawley, 100 y. Y. 206.) Section 344.— Appeal to Appellate Division of Supreme Court. § 2370. Ari'B.U/ : TO What Col'ht it JIay be Taken. — An appeal to the Appellate Division of the Supreme Court may be falien from a decree of a! Surrogate's Court, or from an order affecting a substantial right, made by a surrogate, or by a Surrogate's Court in a special proceeding. (1895 ch. 946.) In his note to section 2570, Mr. Throop says : As the language of this section corresponds substan- tially to that regulating appeals in civil actions, the de- cisions relating to appeals from determinations resting in discretion, qr not involving the merits, will apply. {See Mount V. Mitchell, 31 K Y. 356, s. c. 19 Abb. Pr. 1, re- versing 17 Abb. Pr. 265 ; IJelaplalne v. Lavirence, Z N. Y. (3 Comst.) 801 ; Gardenier v. Spilceman, 10 Johns. 368 ; Skidmore v. ,*§'Aaw, 3 Oh. Sent., 54.) Under § § 2557-2563, an award of costs will not, in general, be reviewable on appeal, except in the case of an abuse of discretion,- or* where the limit fixed by those sections has been exceeded- Such was formerly the rule. {Marvin v. Marvin, 11 Ab^. X. S. 97 ; Lain v. Lain, 10 Paige 191 ; Wilcox v. Smith, 26^«r5. 316; Reidy. t a nderhegden, b Coir. 119; Pevin V. Patchin, 26 iV: r: 441.) ''The appeal may be taken upon questions of law, or upon the facts, or upon ttoth." (§ 2576.) It already has appeared {see sec. 299 ante) that a decree is " the fifial determination of the rights of the parties to a special proceeding in a Surro- gate's Court" (§ 2550) ; and, from every such final determina- tion, an appeal may be taken. But an order — except a final order, otherwise called a decree (§ 2550) — is not appealable unless it affects a substantial right. Under the for-mer practice appeals were permitted " from the orders, decrees and sentences of surrogates, in all cases" (2 R. S. 609, § 104) ; but the operation of this generous provision v/as restricted by the courts which held that some orders so obviously were discretionary or formal as not to be appealable. PART I : GENERAL PROCEDURE. Ch. 1/, § 343. iL An Order must Afiect a " Substantial Right" to lie Appealable. {Bee McGregor v. Bwl, 24 F. Y. 166; Sherman v. Page, 85 'N. 7. 123.) Section 345.— An Order must Affect a " Substantial Right " to be Appealable. The former practice was re-enacted substantially in the pro- vision (§ 2570) which authorizes an appeal from an order affecting a " ^ubstanial right "—no appeals from other orders being allowed. Moreover, only a party aggrieved may appeal. (§ 2568.) Each of the following orders has been held to be o/ppeat able as affecting a "substantial right": An order adjudging ^ that an applicant for letters testamentai-y or of administration • — is incompetent to execut&'the trust because of his drunkenness, improvidence or want of understanding [McMahon v. Harri- son, 6 y. J\ 443) ; an order, denying a motion to vacate that part of a decree, upon the final accounting of an executor, which directed him to pay a specified sum to his counsel {S^ea- mmi V. Whitehead, 78 N. T. 306) ; an order, determining the right to a legacy of one who has filed a petition to compel its payment {Fiester v. Shepard, 92 X. Y. 251) ; an order, adjudg- ing, against the denial of an administrator, that there are assets in his hands and requiring him to account for them (Matter of Gilbert, 104 X. Y. 200) ; an order, fixing the fees of ap- praisers of the personal property of a decedent {Matter of Harriot, 14^ JVi. Y. 540) ; an order, made in a proceeding to dis- pose of real property for the payment of debts, adjudging cer- tain claims against the decedent to be valid {Owens v. Bloomer, \ ' jlr*l/ttA W^^ Hun 298!) ; an order, denying a motion to open a decree ' ' settling the accounts of an executor or administrator {Story v. Dayton, 22 Hun 4;^0; see Matter of Doig, 125 App. Die. 746, ilO Swpp. 93) ; an order, denying a motion to dismiss a proceeding for the examination of a person alleged to have property belongib.§" to tbe decedent's estate {Matter of Slingcr- land, 36 Hun 5^5) ; an order, conditionally dismissing a pro- bate proceeding {Matter of Bnchiey, 2 St. Rep. 673) ; an order, allowing an administrator to file a supplemental account after the original one had been passed upon by a referee whose report was coHfirmefd {People ex rel. Stevens v. Lott, 42 Hun 408, 4 I. Ch. 13, § 346. APPEALS. Same Subject: Some Non-appealable Ordem St. Rep. 851) ; an order, remoying a testamentary trastee, when it is based upon affidavits alone and no findings of fact or conclusions of law have been made {Matter of Scott, 49 App. Die. 130, 62 Sapp. 1059 ; see Matter of Dittrich, 120 App. Div. 504, 105 Supp. 303) ; an order, denying an application to open a decree refusing to probate a codicil relating to personal prop- erty (Matter of Tilden, 56 App. Div. 277, 67 Supp. 879) ; an order, determining the value of an estate and assessing a transfer tax on it [Morgan v. Warner, 45 App. Div. 424, 60 Supp. 963, aff'd 162 iV^. Y. 612) ; an order, reversing an order assessing a transfer tax. {Matter of Hu-ll, 109 App. Div, 248, 95 Supp. 81&.) Section 346. — Sairie Subject : Some Nbn-appealable Orders. Each of the following orders has been held to be non-appeal- aJ}le because not affecting a "substantial right": An order, amending a citation by adding to the names of executors a Ktatement of their representative character {Matter of Soule, 46 Hun 661, 12 St. Rep. "692, aff'd 109 N. Y. 662) ,' an order, made before the return of a citation, denying a motioii to dismiss the petition and amending it; likewisie an order directing that a supplemental citation be issueid {Matter of Phalen, 51 Hun 208, 4 Snpp. 408, 21 St. Rep. 34) ; an order, made before service of a citation requiring administrators to show cause why their letters should not be revoked, dismissing a motion to set aside the citation for alleged insufficiency of the petition upon which it was issued {Blatter of Westurn, 5 App. Div. 595, 39 Supp. 429) ; an order denying a motion for the simultaneous trial of different issues joined in a special proceeding {Henry v. Henry , 4 Diem. 253, s. c, as Estate of Henry, 3 How. Pr. N. S. 386, 9 Civ. Pro. Rep. 100) ; an order setting aside the report of a referee and refetriflg the matter back to him with directions to proceed anew (Matter of Post, 19 Supp. 18, 46 -8f^. Rep. 129) ; an order in a special proceeding, other than one for the probate or the revocation of probate of a will, appointing a referee to report on specific questions of fact subject to confirmation by the surrogate (Matter of Pearsall, 4 Supp. 365, 21 St. Rep. 305) ,■ an order denying a motion to amend a proceeding for PART I : GENERAL PROCEDURE. Ch. 13, %M&. ^^"^T'l*^ A Ex Parte Orders not Appealable— Discretionary Orders: When Appealable. an accounting by striking out the names of certain parties who were alleged to have no interest therein {^[attcr of Xottingham, 88 Hun 443, 34 Fiiipp. 404, 08 St. Rep. 393) ; an order denying the application of a person, having no direct or contingent interest in the fund, to intervene in a proceeding to compel an executor to pay over a legacy; and also an order denying an application for the re settlement of a prior order (flatter of Estate of Halseij. 93 X. Y. 48) ; an order directing an at- lornej' to deposit moneys, which he has collected for an estate, liending an inquiry as to his right to hold them for services rendered {Hatter of Dc Oraindi, 9 Stipp. 873, 31 St. Rep. 744) ; an order allowing a contestant, upon the trial of his objections to an account, to amend his answer and objections (Matter of Burnett, 15 St. Rep. 116) ; an order to show cause in the alternative (Matter of Krcischer, 30 App. Div. 313, 51 Supp. 802) ; an order overruling objections to the jurisdiction of the surrogate, inasmuch as no substantial right can be affected until such jurisdiction has been exercised. (Matter of Loeu-engutli, 114 App. Div. 754, 100 Supp. 422.) Section 347. — Ex Parte Orders not Appealable, Under the former practice an c.r parte order of the surro' g-ate was not appealable, but the aggrieved party was per- mitted to move the surrogate to set it aside (Gibson v. Martin, 8 Paige 481; Skidinore v. Davies, 10 Paige 31C) ; and this is true now. When a motion on notice has been made to vacate an ejc parte order, an appeal may be taken from the order made upon such application (Matter of Johnson, 27 Him 538; Matter of Gostello, 117 App. Div. 807, 103 Supp. 6) if the ex parte order affects a, substantial right. The practice in this particular is similar to that in the Supreme Court. (See Steioart v. Stewart, 127 App. Div. 672, 111 Siipp. 736.) Section 348. — ^Discretionary Orders ■: Wheia Appealable. Where the order is discretionary it will not be reviewed upon appeal, unless there has been such an abuse of discretion or violation of justice as to affect a substantial right. (Mat- ter of Selleck, 111 .Y. Y. 284; Matter of Vandewater, 115 IV. Y. 669; Matter of AiVler, 60 Emn 481, 15 Swp.p. 227, 39 St. Bep, Ch. 13, § 340. APPEALS. 865 No Appeal from Decision. 462; 3Iatter of Russell's Estate, 19 Sifpp. 743, 47 St. Bep. 208: Matter of Pye, 23 App. Div. 206, 48 Supp. 865; Matter of Tilden, 56 App. Div. 277, 07 *Sf«pp. 879; see Matter of Doi;/. 125 App. Div. 746, 110 Supp. 93.) It is evident from these cases cited that the I'ules which govern appeals from discre- tionary orders of the Supreme Court do not control appeals from similar orders of the Surrogate's Court. Upon appeals from such orders of the Supreme Court, the Appellate Di- vision may review upon the merits the very discretion of the court below; for it is the discretion of the Supreme Court whether exercised in one or the other of its branches. The situation is different where the appeal is from another and distinct tribunal, such as the Surrogate's Court; for there, the appellate authority is limited to errors of law or to matters of substantial right not discretionary with the other court. However, where a surrogate has exercised the power given him, by subdivision 6 of section 2481, " to open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court, or to grant a new trial or a new heai'ing for fraud, newly discovered evidence, clerical error, or other suflScient cause ", the section further provides, that, Upon an appeal from a determination of the surrogate, made upon an appli- cation pursuant to this subdivision, the General Term (Appellate Dtvision) of the Supreme Court has the same power as the surrogate ; and his determina- tion mustbe reviewed, as If an original application was made to that term. (Se ^sec. 72J ante.) And although a surrogate has discretion to make a suitable allowance to a special guardian, payable out of the ward/s estate, the Appellate Division has power to review such dis- cretion where it appears that its exercise is detrimental to the ward. This right of review the Supreme Court exercises by virtue of its inherent power to protect the property of an in- fant. {Matter of Stevens, 114 App. Div. 607, 99 Supp. 1070, a^'d 188 N. Y. 589.) Section! 349.~No Appeal from Decision. Upon a trial by the surrogate of issues of fact, the Code requires him to " file in his office his decision in writing, whicld must state, separately, the facts found and the conclusions of law" (§ 2345); -but there is no direct appeal- from such er 366 PART I ; GENERAL PROCEDURE. Oh. 13, § 360. Intermediate Order may be Reviewed without Separate Appeal. decision. (Cambridge Y alley Nat. Bank v. Lynch, 76 N. Y. 51i; Matter of CaMahan, 66 Hun 118, 20 Hupp. 824, 49 St. Rep. 425, app. clis. 139 A'. Y. 51; Spies v. Munroe, 35 App. Dw. 527, 54 Supp. 916; Rccs v. A". Y. Herald Co., 112 App. Div. 456, 98 Siipp. 54^.) To review a deeislon exceptions to the objectionable findiiifjf! must be filed [sec sees. 255 <& 256 ante), and an appeal be taken from the final order or decree entered thereon. Such an appeal " brings up for review, by each court to which the appeal is carried " the decision to which appropriate exceptions have been duly taken. {§ 2545.) Section 350. — Intermediate Order may be Reviewed without Separate Appeal. But an order, " affecting a substantial right ", may be re- viewed without a separate appeal from it, if the special pro- ceeding, wherein it was made, has terminated in a final order or decree. Provision for such a review is made as follows : § 2571. INTEEMEDIATB Oedeh ; IIow Eetiewed. — An appeal, taken from a decree, brings up for review each intermediate order, wliich is specified in the notice of appeal, and necessarily affected the decree, and whicli has not already been reviewed by tlie appellate court, upon a separate appeal taken from that ■order. (1880 ch. 178; see §§ 1316 £ 1317.) But the intermediate order, to be reviewed upon appeal from the final order or decree, must be one which necessarily has affected the decree ; otherwise it is only reviewable by direct appeal from it. Tlius an order of the appellate court, which reverses upon the facts a decree in a probate case and directs a jury trial of the questions of fact, is not such an intermediate order and will not be brought up for review upon an appeal from a judgment of the Appellate Division affirming a decree entered upon the verdict of the jury. {Matter of Budlong, 126 IST. Y. 423; Matter of jBartholick, 141 N. Y. 166.) Whenever the party appealing from a decree wishes to bring tip for review an intermediate order, which necessarily has affected the decree, he must specify such order in his notice of appeal or the appellate court will not review it. However, it has been held that a notice of appeal is to be liberally construed in favor of a surety so that his notice of appeal from a surrogate's decree* rendered upon the report of a referee, is sufficient to bring up for review, not only the decree and the report but also all the orders Ch. 13, § 351. APPEALS. 367 Only Party Aggrieved may Appeal. and findings upon which the decree rested, even though such notice does not mention the order confirming the referee's report. {Matter of Latoson, 42 A.pp. iJlu. 377, 59 Snpj). 152.) Section 351. — Only Party Aggrieved may Appeal. Every riglit of appral is statutory. {(xnrc?:i/ii.sM v. liicssell, 75 Jlun 512, 27 >Sii]>]>. 4G1, 57 A'«f. Jiep. 669 ; ./o//, .s v. tSuM/i, 122 Ajy]'- Div. 666, 107 iStrpp. 508.) The only statute authorizing any appeal by a pcaii/ to a special proceeding in the Surrogate's Court is section 2568 whicli limits the right to one who is ac/- grieved: § 2568. When Party May Appeal. — ^Aay party aggrie-ped may appeal from a decree or an order of a Surrogate's Court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made upon his default. (1880 eft. 178.) It must appear also that the appellant has an actual and prac- tical interest in the coiifcroversy as distinguished from a theoreti- cal one ; and he may not appsal, as the champion of others who do not appeal. (Byijuiit v. T/wu/pson, 128 iVi Y. 42G ; Is/umi v. JV. T. Assn. for Poor, 177 M Y.'ilS; Matter of Rich laottd, m App. Div. 488, 71 Supp. 795; Mutter of Mayer, 84 Hun 539, 82 Supp. 850, 66 St. Rep. 324.) Thus an executor upon his account- ing, having brought the residuary legatees before the court and made them parties to the proceeding, is not a party aggrieved by the decree so far as it determines or afi'eets the rights of such- legatees, althougi t\e\i ^niy nppsil from it {Mitter of Ilodgman, 69 Hun 484, 23 Su^jp. i v5, 52 St. Rep. 727, aff'd 140 m Y. 421 ; see also Matter of Ilodgman, 11 App. Llo. 844, 42 Snpp. 1004, affd 161 N. Y. 627) ; and an executor as such may not appsal from a decree made upon his fin.l accouating which directs him to pay a legacy, where the only question is whether the legacy is Valid and therefore a part of the residuary estate. {Matter of Coe,^ 55 App. Bio. 270, 66 Supix 784.) So, also, an appeal by administrators from a decree, allowing their account as presented, does not bring before the appellate court a question oi the right of one of them to recover, as an individual, upon a claim made by him against the estate; for the administrators are not ag- 'grievedhy the decree. {Metier of Mujer, 84 Han 539, 32 Supp. 850, 66 St. Rep. 324.) But a person named as executor in an instrument propounded as a will is & party aggrieved liy a decree 368 PART I ! GENERAL PROCEDURE." Ch. 13, § 352, When Person not a Party may Appeal. 1 denying probate ; and he may appeal, {Matter of Stapleton, 71 App. Din. 1, 75 Supp. 657 ; Matter of Bayner, 93 App. Div. 114, 87 Supp, 23 ; Matter qfUpkler, 126 App. Div. 199, UO Supp. 650.) It has beei; held that ai; ejfecutor, or other trustee, may appeal from an order or decree directing him to pay, out of an infant's share of the estate, an allowance to the special guardian for services ; but this was an ejfceptional case where the triistee was considered to be apart)/ aggrieved simply because the beneficiary was an infant. ' {Matter qf Stevens, 114 App. jDiv, 607, 99 Supp. 1070. a/'rf 188 If. T. 589.) If the appellant is aggrieved by only a portion of the decree, the appellate court will limit its review to the part affecting Mm. {Matter qf Allen, 9,1 Hun 91, 30 Supp. 683, 62 St. Rep. 636, «/'(? 151 N. Y. 243.) Where a party appeals he must do so within thirty days after service upon him, or upon his attorney, of a copy of the order or decree appealed from, with a written notice of its entry (§ 2572 ; see sec. 359 pQst"\ ; and he cannot appeal at all from a decree or order rendered or made upon his default. (§ 2568.) Section 352. —When Person not a Party may Appeal. By the fpllowing section the right of appeal is given, in certain cases, to persons concerned but who are not parties : § 2569. When Person not a Party May Appdal. — A creflitor of, or person Interested in, the estate or fund affected by the decree or order, who was not a party to the special proceeding, but was entitled by law to be beard therein, upon l!is application ; or who has acquired, since the decree or order was mcifle. a right or interest which would have entitled him to be heard, if it had l;ee:i previously acquired; may intervene and appeal, as prescribed in this article. The tacts, which entitle such a person to appeal, must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal. (1880 ch. 178.) In his note to section 2569, Mr. Throop says; The section has been so framed as to correspond to § 1296, as nearly as the difference between the sub- jects, for which the two se"ctions provide, will allow. This and the last section, although new in form, ai-e sub- stantially in accordance with the genei-al principles of appellate jurisdiction, and with the provisions of exist- ing statutes, so far as the latter regulate the subject thereof. See, as to the persons entitled to appeal in probate cases, 2 R. S. 66 § 55 ; in cases of guardianship, ' 2 R, S. 153 § 18 ; in various other pases, Ddapaine v. Laaor Ch. 13, § 353. APPEALS. S69 When Person not a Party may Appeal. rence, 10 Paige 602; Sherman's Appeal, 16 Abb. Pr. 397, note, s. c. 42 Barb. 274 ; Lewis v. Jones, 50 Barb. 645 ; Pruyn v. Brinkerhoff, 7 ^5&. iVi (S. 400 ; Grilman v. C'tV- man, 35 ^ar6. 591, s. c. 1 Jtedf. 354 ; Reid v. P«wi«- 502, 69 Supp. 482, also 65 App. \ Div. 100, 72 SuppA^b, a^'d 171 N'. Y. 645.) I Where-a person, who was not a party to the proceeding in the '"; Surrogate's Court, takes an appeal under section 2569 he may do so within threemonths after entry of the order or decree complained iof, unless his title was acquired from a party, (§ 2572 ; see sec. I 359 i5os<.) Section 353, — Death of Party before Appeal. It is riot clear whether section 2569 applies, in any case, to an executor or administrator of a party to the special proceed- ing who was aggrieved by the decree rendered, but who, after its entry, has died before appealing from it. But it seems, if such de- cedent himself was " a-person interested in the estate or fqnd afifeeted by the decree," .that his personal representative becomes such a "person interested * * * who was not a party to the special proceeding * * * who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired," and so, being within the permission of the stktute, " may intervene and appeal." {See Boss V. Wigg, 100 ]V. Y. 243, 247.) Ho we vet this may be,^it is provided by section 785— made ap- plicable to the Surrogate's Court by subdivision 6 of section 3347 —that, where a party, ^titled to appeal from a decree or order, dies, before the expirat^n of the time within which the appeal may be taken, the court may allow the appeal to be taken '« by the heir, deinsee, or personal representative of the decedent, at any time within four mouths after his death ". {See sec. l^ante.) Section 354.. — Special Guardian for Infant Party may Appeal. "I The duties of a special guardian for an infant party to a pro- ^ ceeding in the Surrogate's Court do not end upon entry of the l^ decree ; for section 2573 makes him a necessary party to an appeal from it, and he himself may take and prosecute such an appeal, His office and duties continue until the final determination of "Ch. 13, §§ 355, 356. APPEALS. " 371 ; When Appeal should not be Taken — Parties to Appeal : Bringing in Parties. the proceeding; and the Appellate Division will not appoint another special gaardian or guardian ad litem, to take or prosecute any appeal from a decree of the Surrogate's Court. {Matter of Stewart, 23 Ajip. Di.i}. 17, 48 Siipp. 999.) -The contrary doctrine which once prevailed, has been discarded. {See sec 140 ante.) Section 355. — When Appeal from Decree Probating a Will should not be Taken. It is not good practice to appeal from a decree "infir -" ..-a-<^t/ \^^ <>ifnjj>jTiEfltf coding, unless questions of law onhj are involved; forTlfthe appeal be taken upon questions of fact, the appellate court, in case of reversal, must order a jury trial of such ques- tions. (§ 2588.) This relief can be obtained, without appeal and as matter of right, under section 2653a {see sec. post) which enables any person interested in a will to " cause the validity or invalidity" of its probate to be determined by a jury in an action brought in the Supreme Court for that pur- pose. To seek, through an appeal, that which is given as matter of right is a senseless and much censured procedure. {See Matter of Beck, 6 App. Div. 211, 39 8upp. 810, af'd 154 N. Y. 750; Matter of Austin, 35 App. Div. 278, 55 Supp. 52; Blatter of Wells, 45 App. Div. 626, 60 Sujip. 1100; Matter of Brand, 68 App. Div. 225, 73 Supp. 1073; and see sec. 398^05*.) Section 356.— Parties to Appeal : Bringing in Parties. § 2573. Who Must bd Made Parties. — Bach party to the special proceeding in the Surrogate's Court, and each person not a party, who . has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers pre- sented in the Surrop,:ite's Court, or has become manifest In the course of the proceedings taken therein, must be made a party to the appeal. A person not a party, but who must be made a party, as prescribed in this section, may be brought in by an order of the appellate court, made after the appeal is taken ; or the appeal may be dismissed on account of his absence. The apoellate court may prescribe the mode of bringing in such a person, by publication, by personal service, or otherwise. But this section does not require a person interested, but not a party, to be brought in, if he was legally represented, or v/as duly cited in the court below. (1880 ch. 178.) Under the former practice, where the decree appealed from directed an allowance for counsel fees to be paid to an attor- ney, it was held that he was a proper party to the appeal {Peck V. Peck, 23 Hun 312) ; but this ruling is obsolete inas- ■ much as now an allowance can be made only to a party. In his note to section 2573, Mr. Throop says: 372 PAB.T T : flgNE RAL PROCEDTTRE. Oh. 13. ^.856. Parties to Appeal : Bringing in Parties. M — I — ■ ■' ' ^ ^^~~~~~' o I ma I nawwitriiiimnffiMtiiMMmii^^ Under the former statutes, the subject of briuguig in persons not parties was surrouncled with considerable obscurity. (Brown v. Evans, 34 Barb. 594 ; Gilman v. Oilman, 35 Barb. 591 ; Willcox v. Smith, 26 Barb. 316 ; Gilchrist v. Rea, 9 Paige 66 ; Foster v. Foster, 7 Paige 48 ; and Gardner v. Gardner, 5 Paige 170.) The com- missioners were strongly inclined to abolish all rules, which require any person to J)e brought in, who was not a party in the court below ; but a reluctance to disturb existing regulations, when that could be avoided, induced them to prepare this section, which is so guarded, as to avoid most of the objections to the existing, rule upon that subject. No doubt this section was designated to dispel old uncer- tainties; but .it .seems to have created new ones also. It i» not apparent how any person can have a right or interest " directly affected " by a decree or order rendered in a special proceeding to which he was not a party, except, perhaps, in a proceeding to probate a will of personal property. {Hee § 2626; Matter of Wohlgemuth, 110 App. Dir. 644, 97 Supp. 367, aff'd 184 X. Y. 578; Matter of Gaffney, 116 App. Div. 58a, 101 Supp. 882, aff'd 189 .Y. Y. 503.) Xor is it clear whether a person, not a party to the proceeding in the Surrogate's Court, can be made a respondent to an appeal only by an order of the appellate court (c. g. see Matter of Hunt, 120 Apj). Div. 883, 105 'i^irpp. -339), or whether he may be made such a party by the voluntary act of the appellant also. Again, the last sentence excepts " a person interested, but not a party " from the operation of the section " if he was legally repre- sented, or was duly cited in the court below " ; but we have been taught always that a person legally represented or duly icited in a special proceeding is a party to it. As yet this section has not been-construed by the courts, and no good can come from a discussion of its obscurities. It is probable, however, that an appellant is required to name as a party to his appeal only " each party to the special proceeding in the Surrogate's Court," that is : each person who teas cited or appeared therein or who waived, issuance and service of citation; and this interpretation harmonizes with section 2574 which provides that " an appeal must be taken by the service, within the State, upon each party to the special proceeding, Ch. 13, § 357, APPEALS. B73 Appeal where AdverseJPartxhas pied.,,. other than the appellant * * * of a written notice " etc. That section regulates the manner of taking an appeal; and it con- tains no provision for sendee of the notice upon any person except "each party to the special proceeding", and "the surrogate, or the clerk of the Surrogate's Court." It is probable also that any pei-son not a party, who brings himself within the provisions of siection 2573, must be made a party respondent upon his own application to the appellate court; but it is incredible that this section compels any per- son, who has had no opportunity to be heard in the Surrogate's Court, to become a party to an appeal from its decree or order. However, as a '• creditor " or a " person interested ", who was not a party to the special proceeding in the Surrogate's Court, as authorized by section 2569 may appeal from a decree or order made therein, so also, as authorized by section 2573, he " may be brought in, by an order of the appellate court " made upon his own application, as a respondent to an appeal taken by a party to the proceeding. But the Surrogate's Court has no power to make an order, allowing the interven- tion of new parties to a special proceeding, after a decree therein has been rendered and an appeal is pending. ( Matter of Dunn, 1 Dem. 294.) Still it must be admitted that tlie language of section 2573- authorizes the bringing in of " a person not a party " by au order made upon the application of the appellant; but it is hard to imagine a case wherein such a procedure would be appropriate. Before the Code it Avas held that a person's right to have an order directing him to be brought in as a respondent, in a pending appeal taken from a surrogate's decree, was not af- fected by the fact that the time within which he could himself have appealed therefrom has expired (Cox v. Schermcrhorn, 12 Etm 411) ; and this rule still prevails. Section 357.— Appeal where Adverse Party hats Died. Where an adverse party has died after the order was made or the decree rendered an appeal therefrom may be taken as if he was living; but it cannot be heard until the heir, devi- see, executor or administrator, as the case requires, has been 874 PART I : GENERAL PROCEDURE. Ch. 13, §§ 338, 359. -ii.,, i„i II ■-' - ^ n r» nirr ii«^^.«wtaMi*» mm iii # iWi ■■■■■■n ■ , rr. t Designation of'Parties to Appeal— Time within wliich Appeal may be Taken. substituted as a respondent. In such event, the undertaking required to perfect the appeal or to stay the execution of the order or decree appealed from, must recite the fact of the ad- verse party's death; and it inures, after substitution, to the benefit of the person substituted. (§§ 1297 ce'2575.) The application for an order of substitution must be made to the appellate court; and where personal service of notice of such application has been made, within the State, upon the proper representative of the decedent, an order of substitution may be made upon application of the surviving party. (§§ 1299 d 2575; sec sec. 380 post.) But if the application be delayed too long it may be denied for laches.. [VanNostrand v. VanNostrand, 121 App. Div. 262, 105 Siipp. 798.) Section 358. — Designation of Parties to Appeal : Title of Cause. The party or person appealing is designated as the appel- lant and the adverse party as the respondent. After the ap- peal is taken the name of the appellate court must be substi- tuted for that of the Surrogate's Court in the title of the special proceeding, and the name of the county may be omit- ted ; but otherwise the title is not changed in consequence of the appeal. (§§ 1295 & 2575.) Section 359. — Time within which Appeal may be Taken. The time within which an appeal may be taken is fixed aa follows : S 2572. Time to Appeal. — An appeal by a party must be taken within thirty day* after the service, upon the appellant, or upon the attorney, if any-, who appeared for him in the Surrogate's Court, of a copy of the decree or brder from which the appeal is taken, and a written notice of the entry thereof. An appeal by a person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means of an assignment or conveyance from a party ; in which case, the appeal must be taken within the time limited for the taking thereof by the assignor or gra4it«r. <1880 ch. i78.) In hi s note to section 2572,, Mr. Throop sayJiXC ~~ This section fixes, for all cases, a uniform time for ap' pealing; and requires it to be computed, when the appellant appeared in the court below, from the service ; of a copy of the decree or order. In those particulars it ! conforms to &,§ 1343, 1351, and 1359, regulating appeals C h.13,§359. APPEALS. Time within whicli Appeal may be Taken. from orders in other cases. Under the provisions of the Revised Statutes the time for appeal varied in the dif- ferent kinds of proceedings. An appeal from a decree admitting- a will to probate, or revoking probate, or made on the final settlement of an account, must have been taken within three months after entry of the decree. (2 R. S. 66 § 55 ; 2 R. S. 608 § 90 ; 2 R. S. 608 § 105.) An appeal from an order ap- pointing, removing, or refusing to remove a guardian, must have been taken within six months after the entry of the order. (2. R. S. 610 § 107.) In every other case, an appeal must have been taken within thirty days after making the order or decree. (2. R. S. 610 § 102.) The time was not computed from the service of a copy. {Bay V. VanBensselaei; 1 Paige 423 ; and see JRohertson V. McGeoch, 11 Paige 640.) As to the distinction, under the provisions of the Revised Statutes, between final decrees, and other de- crees and orders, see Guild v. Peck, (11 Paige 475); Branson v. Ward, (3 Paige 189) ; Smith v. Van Kuren, (2 Barb. Ch. 473J ; and Williams v. Fitch (15 Barb. 654.) Serving a copy of an order or decree with notice of its fiUng will not limit the time for appealing therefrom, inasmuch as there must be also a notice of the entry of the order or decree. Such an entry has been defined carelessly as the record thereof in a book kept for that purpose {Matter of Kavanagh's Estate, 10 Supp. 899, s. c, as Matter of Armstrong, 32 St. Rep. 441) ; but it is, rather, an entry or filing of the order or decree with the clerk for the purpose of record, to which the section re- fers. {O'Connor v. McLaughlin, 80 App. Div. 305, 80 8upp. '741.) The right of appeal is not postponed until after the clerk has actually recorded the order or decree appealed from. An appeal must be taken within the time limited which can- not be extended otherwise than by stipulation. Where, how- ever, " the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inad- vertence, or excusable neglect, to serve it upon the other, * * * the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omis- sion to be supplied * * * upon such terms as justice requires." '<&§1303 & 2572 J Cooper v. Cooper, 76 App. Div. 221, 78 Stipp. 878 PART I : GENERAL PROCEDURE. Ch. 13,359, ________——— — -A Time within which Appeal may be Taken. 397 ; Matter of Mink, 97 App. Div. 641, ^7 o Supp. // o& ; Smith fO V. Havens Relief Society, 115 Apj). Div. 185, 100 Supp. 932; ^ Matter of Sheldon, 117 App. Div. 357, 103 Siopp. Ill; see sec. 38I post.) Service, however, upon, either the clerk (or surrogate) or an adverse party must be made well and season- ably, to authorize the court to gi'ant such relief. {See Hall v. City of yew York, 79 App. Div. 102, 79 Supp. 979-; TJvingston v. N. Y. El. R. R. Co., 11 Su2-)p. 359, 33 St. Rep. 818.) It has been held, where an appellant seasonably has served his notice of appeal, that the Surrogate's Court may allow him to file and serve an undertaking to per-fect the appeal if through " mistake, inadvertence or excusable neglect " he has omitted to do so within the proper time (Matter of Witmark, 15 St. Rep. 745; flatter of Darragh, 1 Con. 170, 3 Supp. 283, 19 St. Rep. 207) ; but its authority to grant such relief is not ap- parent inasmuch as neither the surrogate nor the Surrogate's Court is " the court in or to which the appeal is taken." {Sec Nelson v. Tenm/, 113 N. Y. 616.) As a rule any question con- cerning the validity or regularity of an appeal from an order or decree of the Surrogate's Court should be raised before the appellate triiunal by a motion to dismiss the appeal. {DuBois v. Brown, 1 Dem. 317, 334; Hynes v. McCreery, 2 Dem. 158.) Inasmuch as the court cannot relieve a party who fails to taken an appeal in due time, however meritorious his excuse may be {Bronson v. Wan-i, 3 Paige 189 ; Stone v, Morgan, 10 Paige 615; Patterson v. Hamilton, 26 Hun 665), strict practice Is required on the part of him who undertakes to limit a party's time to appeal {Kelly v. Slieehan, 76 N. Y. 325) ; andTTf has been held that the^requisite notice of the etitry of an'^der or decree must come from the prevailing party, snd also that such a notice is insufficient unless the office address or place of business, of the attorney or party subscribing it, is stated as required by rule 2 of the General Rules of Practice. {Kilmer V. Hathorn, 78 N. Y. 228.) Under section 785; made applicable to the Surrogate's Court by subdivision 6 of section 3347, when a party, entitled to ap- peal from a decree or order, dies, before the expiration of the time within which the appeal must be taken, the court may allow the appeal to be taken " by the heir, devisee, or personal Ch. 13, §§ 360, 361. APPEALS. Sn Form: Notice of Entry of Order or Decree.— Appeal: How Taken. representative of the decedent, at any time within four months after his death." {See sec. 148 ante.) Section 360.— Form: Notice of Entry of Order or Decree to Limit Time for Appeal. (Title of Proceeding.) Take notice that the decree (or, order) of the Surrogate's Court In the above entitled special proceeding, of which a copy is hereto annexed and herewith served upon you, was duly entered in the office of the surrogate of county, on the day of , , 19... Dated at , N. Y., the day of ., 19. . . -jHU>rvJi>r,-^^-^ r ,To i.....i± Attorney for •nev lor ...i /office and P. O. address!^ , N. Y? The notice, together with a copy of the order or decree, should be served upon each party to the special proceeding- whose time, for appealing, it is sought to limit. Section 361. — Appeal: How Tak6n. The notice of appeal and its service are provided for as follows : § 2574. Appeal ; How Takbx. — ^An appeal must be taken by the service, within the State, upon each party to the special proceeding, other than the appellant, and upon the surrogate, or the clerk of the Surrogate's Court, of a written notice, referring to the decree or order appealed from, and stating that the appellant appeals from the same, or from a specified part thereof. Where a party to the special proceeding in the court below appeared in person, the notice of appeal' must fee personally served upon him ; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. Where a party, who was duly cited, did not appear in the Surrogate's Court, notice of appeal must be served upon him personally, if he can, with due diligence, be found within the county ; otherwise it may be served by deposit- ing it. Indorsed with a direction to the party, with/ the surrogate, or the clerk of the Surrogate's Court. Where a person to be served cannot, with due diligence, be found, to make personal service upon him, as prescribed in this section, the surrogate, or a justice of the Supreme Court, may, by order, prescribe such a mode of Service 878 ~ PART I : GENERAL PROCEDTniE. Ch.18,36 1. Appeal: How Taken. as he thinks proper ; ana service In that mode has the same effect as personal service. (18S0 ch. 178.) The grounds of the appeal ueed not be stated, and a notice that the appeal is " from the decree, and each and every part thereof " will authorize a review upon both the facts and the law (Matter of Will of Steicart, 135 N. Y. 413) ; but if an intermediate order is to be reviewed, on an appeal from a, de- cree, it must be specified in the notice of the appeal (§§ 2571 d 2587; see sec. 351 ante) although not necessarily with that precision required by the more exacting terms of the cor- responding section 1301 relating to an appeal from a judgment in an action. (Matter of txncson, 42 App. Div. 377, 50 Supp. 152.) It will be observed that no pi;ovision is made by section 2574 for service of a notice of appeal without the State upon a non-resident party who has appeared personally in the pro- ceeding; and the section indicates that such service is not contemplated, unless, perhaps, it should be required by an order of " the surrogate or a justice of the Supreme Court." The rules which regulate generally the service of a notice or other paper in a proceeding in the Surrogate's Court, and which particularly have been discussed hereinbefore (see sec. 181 ante), do not apply to the service of a notice of appeal; and, in this respect, the practice is unlike that prescribed by sections 1300 and 1302 for service of a notice of appeal in an action in the Supreme Court. Thus there is no authority for mail service of a notice of appeal from an order or decree of the Surrogate's Court. (Matter of Williams, 6 Misc. 512, 27 Supp. 433.) The notice of appeal must be served upon each party to the special proceeding, other than the appellant, instead of upon- the adverse party only as prescribed by section 1300 where an appeal is taken in the Supreme Court. And in case a party has appeared in the Surrogate's Court the notice must be per- sonally served upon him or upon his attorney within the State; but if with due diligence he cannot be found, so as to make such personal service upon him, an application must be made to the surrogate, or to a justice of the Supreme Court, for an order prescribing some substituted mode of service. So too, unlike the practice upon an appeal in the Supreme .» JM.3i s.»'-i Ch. 13, § 862. APPEALS. 879 Substituted Service of Notice of Appeal. Court, each person who was cited in the special proceeding, even though he defaulted, must be made a party to the appeal; and if, with due diligence, he can be found tvithin the county the notice of the appeal must be served upon him personally, but "otherwise it may be served by depositing it, endorsed with a direction to the party, with the surrogate or the clerk of the Surrogate's Court." It is not apparent why a party who defaulted in the court below should be a necessary party to an appeal, or why a personal service upon him of the notice is required, if he can be found within the county, but other- wise is dispensed with even though he may be found elsewhere within the State. The statute does not indicate what shall be done with a notice of appeal after it has been "served by depositing it, endorsed with a direction to the party, with the surrogate or the clerk of the Surrogate's Court " ; and its service seems to be complete whenever it has been so deposited, as authorized by section 2574, even though it may not have been forwarded to the party. An omission or other irregularity in the notice of appeal, or in the service thereof, may le waived by the act or acquies- cence of the party affected thereby, as, by noticing the appeal for argument {Matter of Gates, 26 Eun 179), or by some other positive act of submission to the appellate court {Pearson v. Lovejoy, 53 Barl. 407), as well as by written stipulation {Bagley v.^ Jennings, 58 Hun 56, 11 Supp. 386, 33 St. Rep. 355) ; but if a notice be returned because of alleged irregular or untimely service, and this is questioned by the appellant, it seems that the matter may be determined upon a motion, made before the appellate court, to require an acceptance of the notice as having been duly served. {Wingert v. Erakauer 180 N. Y. 265.) Section 362.— Substituted Service of Notice of Appeal. " Where a person to be served " with the notice of appeal '' cannot, with due diligence, be found, to make personal serv- ice upon him," as prescribed in section 2574, " the surrogate or a justice of the Supreme Court, may, by order, prescribe such a mode of service as he thinks proper; and service in that mode has the same effect as personal service." (8 2574- see' sec 361 ante.) It seems that this substituted service i^ 880 ' PART I : G ENERAL PROCEDURE. Ch. 13.m / ^ ^ : _., _. -JEocauJSflMfiajcOjujfiaJ . ^ . >_». ■ < — — authorized only upon a 'party wlio appeocd in the Surrogate's > Court; for section 2574 makes special provision for service upon a party cited, but who did not appear, by requiring the notice of appeal, endorsed with a direction to him, foHbe de- "^ posited with the surrogate or clerk, if such party cannot " with due diligence be found within the county." The practice here authoiuzed is similar to that provided by section 1302 where service of a notice of appeal in an action cannot be made within the State either upon the adverse party or his " proper attorney." Where a person to be served cannot with due diligence be found to make personal service upon him, as prescribed in sec- tion 2574, the facts should be set forth in an aflSdavit and an application thereon be made to the surrogate, or to a justice of the Supreme Court, for the order; but the pai-ticular mode of the substituted service which the surrogate or justice may prescribe will be determined in view of the facts disclosed. Section 363.— Form: Notice of Appeal. [Title of Proceeding.) Take notice that a contestant (or otherwise describe his status) in the ahove entitled special proceeding hereby appeals, both upon the law and the facts, to the Appellate Division of the Supreme Court, in the Department, from (if part of decree or) order, specify it) the decree (or, order; an-cJ if order briefly describe iif herein of the Surrogate's Court (or, of the surrogate) of the county' of entered in the office of the surrogate of county on the day of , 19.., and from each and every part thereof; (if review of intermediate order is sought, add:) and that appellait intends to bring up, for review, upon this appeal, the intermediate order made in said proceeding, and entered in said surro- gate's office on the .... day of 19... (specify briefly the nature of such order.) Dated at , N. Y., the .... day of ., 19. . . Attorney for , appellant, (Office and P. O. address.) N, y. To the Surrogate of the county of ;."'"".* ; and To \\^ (Specify each .party to proceeding and, his address, so far as knovm; but name attorney of each who has thus appeared.) Ch. 13, § 364. APPEALS. ^ _„!!L ,„. _ Formj Affldayit bj Peraon.not a Partjrjjvb£_^A^^ , „ Inasmuch as a special proceeding continues in the Surro- gate's Court until an appeal has been perfected, the notice of appeal should be entitled accordingly; and it should be di- rected to, and served upon, each party to the proceeding even though he did not appear therein. It is good practice to state in the notice that the appeal is taken upon the law and the facts (see Matter of aUman, 92 App. Div. 462, 87 Supp, 128) although where the appeal is from every part of a decree the facts are brought up for review. {Matter of Stewart, 135 N. Y. 413; Matter of Spratt, 4 App. Div. 1, 38 Supp. 329; see sec. 386 post.) Section 364.— Form: Affidavit by Person, not a Party, who Appeals. {Title of Proceeding.) STATE OF NEW YORK, ) County of \^^' of , being duly sworn, says: that he is an heir and one of the next of kin of , deceased, whose will was admitted to probate, in the above entitled special proceeding, by a final decree rendered herein by the Surrogate's CJourt of the county of , and entered in the oflSce of the surrogate of said county, on the day of 19 . . ; that deponent is a person interested in the estate affected by such decree, but was not a party to said proceeding although he was entitled by law to be heard therein upon bis application; and that, had said died intestate, deponent would have been entitled, as a distributee, to share his personal estate, but that all of it has been disposed of by bequests made in said will to other persons. (Or otherwise, as required by sec- tion 2569, state the facts which entitle the person, not a party to the special proceeding, to appeal.) iJurat.) (Signature.) The facts, which entitle a person, not a party, to appeal, must le shown hy an affidavit which must be filed, and a copy thereof served with the notice of appeal. (§ 2569.) Such in- tervention is rather unusual in practice; and the facts which rnay entitle a person, not a party, to appeal are so diverse thai it is difficult to suggest any satisfactory precedent for an affidavit to meet all the emergencies which may arise. PART I: GENERAL PROCEDURE. Security to Perfect Appeal^ Section 365 Security to Perfect Appeal, There is some uncertainty in the law prescribing security to perfect an appeal to the Appellate Division. The require- ment is : ! 2577. Secokitt to Peefect Appeal. — ^To render a notice of appeal effectual for any purpose, except in a case specified In the next section, or where It is specially prescribed by law, that security is not necessary to perfect the appeal, the appellant must give a written undertaking, with at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. (1880 ch. 178.) Section 2578 relates to security upon an appeal, by an ex- ecutor or other trustee, from a decree directing him to pay or deliver money or other property. As firct enacted it pro- vided that the notice of appeal, therein specified, was not effectual for any purpose until an undertaking had been given to the effect, that, if the decree or order appealed from, or any part thereof. Is affirmed, or the appeal is dismissed, the appellant will pay all costs and damageSf-^hich may be awarded against him upon the appeal, and will pay the sum s5^irected tO' be paid ov collected, or, as the case requires, will deposit or distribute the money, or deliver the property, so directed to be deposited, dis- tributed, or delivered, or the nart thereof as to which the decree or order Is affirmed. (1880 ch. 178.) Thus the very undertaking specified in section 2577 was in- corporated in the larger undertaking required by section 2578 ; and the reason is obvious why a person appealing under sec- tion 2578, as originally adopted, should not give the under- taking mentioned by section 2577. Afterwards (1882 ch. 399), section 2578 was amended into its present form by striking out the words "not effectual for any purpose " and substituting therefor the words " does not stay the execution of the decree appealed from"; but section 2577 was not amended at all. So it happens that by the terms of the two sections the appeal mentioned in section 2578 may be perfected without any security whatsoever, because such an appeal is excepted from the operation of section 2577. This result may not have been within the legislative intent which seems to have been to relieve eaaecutors and other trtistees from the hardship of giving a bond, in double the amount involved, in order to perfect the appeal even where no stay was desired. Very likely section 2577 also should havei. Ch. 13, § 866. A PPEALS. J^^ ,. • ' No Stay whatevCT InCertamCases^^^^^^^^ been amended by striking out the words " except in a case specified in thB-next section " ; but this was not done. No light has been thrown upon this obscurity by any authoritative de- cision; but it is held by the Surrogate's Court of New York county that in all cases security must be given to perfect an appeal as .provided by section 2577, and that section 2578 Is only applicable where an appellant therein mentioned seeks a stay of execution. (Estate of Cluft, 7 St. Rep. 753, 11 Civ. Pro. Rep. 338 ; Matter of Witmark, 15 St. Rep. 745 ; see Mat- ter of Holmes, 79 App. Div. 267, 79 Supp. 687, aff'd 176 N. Y. 60.4.) This construction furnishes a safe rule of practice al- though it ignores these words in section 2577: "Except in a case specified in the next section." It is provided also in section 2581 that Except as otherwise specially prescribed, tlie filing o( a proper undertaking, and service of the notice of appeal, perfect the appeal. (See sec. 371 post.) An appeal perfected by giving security under section 2577 operates as a stay of all proceedings to enforce the order or decree appealed from, except in certain specified cases here- inafter to be considered (§ 2584; Matter of Arkeniurgh, 11 App. Div. 44, 43 Supp. 1150, aff'g 17 Misc. 543, 41 Supp. 287) ; but where an undertaking, pursuant to this section, has been given upon an appeal from only a portion of a decree it seems that the execution of the remainder of it is not stayed. (Mat- ter of Kavanagh, 9 Supp. 443, 29 St. Rep. 215 ; Matter of Bul- lard, 4 Civ. Pro. Rep. 284.) After the filing and service of a sufficient notice of appeal, and the giving of an undertaking requisite to render the appeal effectual, the matter is out of the Surrogate's Court and pro- ceedings predicated upon an alleged insufficiency of the under- taking can be taken in the appellate court only. (DuBois v. Brown, 1 Dem. 317, 334 ; see Matter of Sheldon, 111 App. Div. 357, 103 Supp. 177.) Section 366.~No Stay whatever in Certain Cases. The following section provides for certain cases of appeal where there is no stay : I 2583. Decbeb Rejvoking Probate, urc. Not Stayh). — An appeal from a decree revoking the probate of a will, or revoking letters testamentary, letters 6t administration, or letters of guardianship ; or from a decree or an order, 384 P^I'T J : QE NEBAL PR OCEDURE. '^:-I "~~ When Issuance of Letter|J[s not stayed. ,_ suspending an esecutor, administrator, or guardian, or removicg or suspcniirij a testamentary trustee, or a freeholder, appointed to execute a decree, as pre- scribed in title flfth of this chapter or appointing a temporary administrator, or an appraiser of personal property, does not stay the execution oi: the decree or order appealed from. (1880 ch. 178.) The words " or a freeholder, appointed to execute a decree, as prescribed in title fifth of this chapter " should have been stricken c^ut because section 2767, which provided for the ap- pointment of such a freeholder, has been repealed. (See 190i ch. 750.) To perfect any appeal specified in section 2583, the security prescribed by section 2577 must be given ; but execution of the decree is not stayed thereby nor by any security given thereon. (Stout v. Betts, 74 Hun 266, 26 Supp. 809, 56 -Sf*. Bep. 356; Fernhacher v. Fernhacher, 4 Dem. 227, 246, s. c, as Estate of Ferniacher, 8 Civ. Pro. Bep. 349.) Whether an alternative order of the Surrogate's Court which directs an executor to file an official bond within a specified time, and, in default thereof, " orders that the letters testamentary be revoked and annulled " is itself a decree revoking such letters in case the bond be not filed, so as to be within the operation of this sec- tion, was a question before Surrogate Rollins in Halsey v. Halsey (3 Dem. 196) ; but it was not decided. Section 367. — When Issuance of Letters is not stayed. Notwithstanding a perfected appeal the surrogate may issue letters, in certain cases, pursuant to this section : § 2582. Decree fok Probate, etc.. How fae Suspended by ApfeiAL. — An appeal from a decree of a surrogate, admitting a will to probate, or grant- ing letters testamentary, or letters of administration, or from an order or judgment of the Appellate Division of the Supreme Court afiarming a decree of the surrogate admitting a will to probate or granting letters testamentary or letters of administration, does not stay the issuing of letters, where, in the opinion of surrogate, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in an ordinary case, except that they do not confer power to sell real property by virtue of a provision In the will, or to pay or to satisfy a legacy, or distribute the unbcqueathed property of the decedent, until after the final determination of the appeal ; and in case letters shall have been Issued before such appeal the executor or administrator, on a like order of the surro- gate, may exercise the powers and authority, subject to the duties, liabilities and exceptions abwye provided, (1900 ch.. l&l. ) But the perfected appeal from such a decree cDoes stay the issuing of letters pursuant to it, unless and until the surrogate makes the prerequisite order manifesting his opinion that Ch.J3,J_368. „__— APPEALS'. ~—— __SSl- Security for Stay where Decree is for Money otProperty. " the preservation of the estate requires that the letters should issue." Moreover, a perfected appeal from such a decree suspends the power of an executor or administrator with tha will annexed, to whom letters already may have been issued, unless the surrogate by an order confers upon him the re- stricted powers authorized by the section. {Matter of Place, 5 Dem. 228.) In Thompson v. Tracy (60 N. Y. 174) the Court of Appeals construed the earlier statute (1871 ch. 603), which was re- enacted in section 2582; and it was held, where letters had been issued for the preservation of an estate pending the ap- peal, that a reversal of the decree probating the will did not supersede the letters until a final determination of the appeal after the jury trial awarded upon such reversal. It would seem that this is the law under section 2582. However, a dif- ferent rule is suggested in Matter of Hopkins (95 App. DiV: 57, 87 Supp. 793), wherein apparently it was held that an order of the surrogate, after the reversal, is essential to enable the executor to act pending further proceedings; but it does not appear that any qualifying order had been made in this case prior to the reversal. {See s. c, 41 Misc. 83, 83 Supp. 890.) In Matter of Gihon (48 App. Div. 598, 62 Supp. 426), it was held that, under this section, the surrogate may issue letters after the appeal has been decided by the Appellate Division and pending a furtJier appeal to the Court of Appeals. If a temporary administrator has been appointed, pending a probate proceeding in the Surrogate's Court, he becomes functus officio upon the entry of a decree admitting the will to probate and the issuance of letters testamentary ; and if an appeal thereafter be taken from such decree the surrogate under section 2582 may empower the executor to act during the pendency of the appeal. {Matter of Ohoate, 105 App. Div. 356, 94 Supp. 176.) Section 368.— Security for Stay where Decree is for Money or Property. Where a decree directs the payment, distribution, deposit or delivery of money or other property, an appeal therefrom does not effect a stay of execution unless security is given as prescribed by the following section : 880 PART I : GENERA L PROCEDURE. Ch. 18,.869^ Seourltj fqr Stay in Contem pt Proceedings. I 2578. Notice op Appeal Dobs Not Stay Phoceedings Uxldss Unoeb- TAKINO IS Given. — ^Notice of appeal by an executor, administrator, testamentary trustee, guardian, or other person appointed by tlie Surrogate's Court, from a decree directing liim to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property ; or by an executor or administrator from an order granting leave to Issue an execution against him, as prescribed in section 1825 of this act, does not stay the execution of the decree appealed from unless the appellant gives an undertaking with at least two sureties, In a sum therein speciiled, to the effect that if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or as the case requires will deposit or distribute the money or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed. (1882 eh. 399.) It will be noted that the very undertaking "to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars ", required by section 2577 to perfect an appeal (see sec. 365 ante) is included also in the larger undertaking under section 2378 to " stay the execution of the decree appealed from " ; and so it would appear that an ap- peal by an executor or other trustee is perfected in compliance with section 2577 when the undertaking specified in section 2578 — which covers " all costs and damages " without limit — has been given. This seems to be the construction placed upon the sections by Surrogate Rollins in Matter of Cluff (7 St. Rep. 753, 11 Civ. Pro. Rep. 338) ; and the same conclusion is reached, though by different reasoning, in Eumsey's Practice. (2d ed. Vol. 2, p. 924.) But the careful practitioner will ad- vise both undertakings where security is given under section 2578 — and both easily may be included in the same instrument. Where an undertaking has been given as prescribed by section 2578, no greater liability can be created by an additional undertaking under section 2577. Section 369.— Security for Stay in Contempt Proceedings, Where the appeal is from an order or decree directing a commitment in contempt proceedings, it does not operate as a stay unless security he given, as follows : 5 2579. SBcnniTT to Stat Proceedings in Case op Commitment— An appeal from a decree or an order, directing the commitment of an executor, adminis- trator, testamentary trustee, guardian, or other person appointed by the Surro- gate s Court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate, or for neglect of duty ; or directing the commitment 01 a person refusing to obey a subpoena, or to testify, when required according 7 [. 18, § 370. APPBAL8. 887 Amount of Undertaking. law ; docs not stay the execution of the decree or order appealed from, unless ! appellant gives an undertalsing, with at least two sureties, In a sum therein icifled, to the effect that, if the decree or order appealed frrm, or any part ireof, is affirmed, or the appeal is dismissed, the appellant will, within twenty fa after the affirmance or dismissal, "surrender himself, in obedience to the ;ree or order, to the custody of the sheriff of the county, wherein he was ected to be conunitted. [f the undertaking is broken, it may be prosecuted in the same manner, and th the same effect, as an administrator's official bond ; and the proceeds of ' i Action must be paid or distributed, as directed by the surrogate, to or long the persons aggrieved, to the extent of the pecuniary injuries sustained them ; and the balance, if any, must he paid into the county treasury'. 880 oh. 178.) . . It has been held, where, by such an undertaking, the execu- on. of a decree or order appealed from has been stayed but ere has been an affirmance by the Appellate Division, and, lereafter an appeal is taken to the Court of Appeals^ that if le appellant gives the requisite undertaking for costs and images in that court {see § 1326) his appeal thereto isper- cted and the execution of the decree or order is still stayed r virtue of the original undertaking. {Matter of Pye, 21 Ap'p. iv. 266, 47 Supp. 689; sec. 333 ante- hut see § 1327.) sction 370. — Amount of Undertaking, The amount of the undertaking, required by either- of see- ms 2578 and 2579, is ascertained, as follows : \ 2580. Amount of Unddetaking; How Fixed. — The sum specified in an lertaking, executed as prescribed in either of the last two sections, must, ere the appeal is taken from a decree directing the payment, depositing, or tribution of money, be not less than twice the sum directed to be paid, losited, or distributed. Vhere the appeal is taken from an order granting leave to issue an cxecu- 1, it must be not less than twice the sum, to collect which the execution may 16. n every other case, it must be fixed by the surrogate, or by a judge of the lellate court, who may require proof, by affidavit, of the value of any prop- y, or of such other facts as he deems proper. Che respondent may apply to the appellate court, upon notice, for an order uiring the appellant to increase the sum so fixed. If such an order is nted, and the appellant makes default in giving the new undertaking, the leal may be dismissed or the stay dissolved, as the case requires. (1880 eh. To summarized— The sum to be specified in an undertaking mtioned in secfions 2578 and 2579 is fixed or ascertained (. (1) Where the decree appealed from directs "the payment, positing, or distribution of money " such sum must be " not s than twice the sum directed to le paid, deposited or dis- luted." (2) Where the order appealed from grants leave to issue an 888 PART I : GENERAL PROCEDURE. Cn. 13, § 371. Requisites and Effect of rndcrtaliing ; Action thereon. execution such sum must be "not lesw ilian ttvice the sum, to collect 'which the execution may issue "; and (3) In each of the follor/ing cases such sum " must be fixed by the surrogate, or by a judge of ths appellate court": (a) Where the decree appealed from directs the delivery of property; or (b) Where the decree or order appealed from directs a commitment in contempt proceedings. A careful examination of the various sections shows that it is only where" the undertaking is given in one of these two cases that a'sum specified in it " must te fixed by the surro- gate, or by a judge of the appellate court." (iS'ee Fernbacher V. Fernbacher, 4 Dem. 227, 247.) In Matter of Dittiich (52 Misc. 277, 102 Supp. 1124), an appeal had been taken from a decree which merely directed a party to account, and it was held by the surrogate of Kings County that, to obtain a stay of proceedings, the app€llant must give the undertaking to perfect the appeal and also an undertaking in an amount to be fixed by the surrogate under section 2580; but the learned surrogate seems to have over- looked section 2584 under which a perfected appeal from such a decree operates as a stay of proceeding. Section 371.— Requisites and Effect of Undertaking : Action , thereon. Certain requisites of an undertaking, as well as its effect, are set forth in the following section which also provides for its enforcement: § 2581. Requisites of Tjndeetaking. — An undertaking, given as prescribed In tlie last four sections (2577-2S80). must te to the people Of the State; must contain the name and residence' ot each of the sureties thereto ; must be ap- proved by the surrogate or a judge of the appellate court; and must be filed In the surrogate's office. Except as otherwise specially prescribed, the filing of a proper undertaking, and service of the notice of appeal, perfect the appeal. The surrogate may, at any time, in his discretion, make an order, authorizing any person aggrieved to bring an action upon tlie undertaking, in his o'lVn name, or in the name of the people. Where it is brought in the name of the people, the damages collected must be paid over to the surrogate, and distributed by him, as justice reQuires. (1880 ch. 178.) Where an appeal is taken from an order or decree after an adverse party has died, but, " as if he was living," it is pro- vided in section 1297, made applicable by section 2575 : In such a case, an undertaking jequired to perfect the appeal, or to . stay Ch. 13, § 371. APPEALS. 389 Requisites and Effect of Undertaking : Action thereon. the execution of the judgment (decree) or order appealed from, must recite the fact of the adverse party's death; and the undcrtaliing enures, after suhstitu- tlon, to the benefit of the person substituted. (1876 ch. 448.) The general regulations concerning bonds and undertakings, as contained in sections S10-81G of the Code, apply to such an undertaking (§ 3347 suh. 6) i&xcept as modified by the par- ticular provisions we have been considering. Although such an undertaking must be executed by at least two sureties, any fidelity or surety company, authorized by the laws of the State to transact business, is made equivalent to them; and the appellant need not join with his sureties. (§ 811.) Where twice the sum specified in the undertaking is five thousand dollars or upwards, the surrogate may, in " his discretion, allow the sum in vi'liich a surety is required to justify to be made up by the justification of two or more sureties, each in a smaller sum. But in that case a surety can- not justify, in a sum less than five thousand dollars, and when two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum for more ^han one of them." (§ 813.) conforms su-bstantiallu to the form therefor, prescribed by the statute, and docs not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit, It is given, (§§ T29 d 2538.) And it is provided by section 730, made applicable by sec- tion 2538: Where such a bond or undertaking is defective, the court, ofiScer, or body, that would be authorized to receive it, or to entertain a proceeding in con-^ sequence thereof, if it was perfect, may, on the application of the persons who' executed it, amend it accordingly ; and it shall thereupon be valid, from the time of its execution. (1876 ch. 448.) The undertaking must be acknowledged or proved, and cer- tified, in like manner as a deed to be recorded (§ 810) ; and must be filed in the surrogate's office. (§§ 2581; 2575 t6 1307.) However, although it '' must be approved by the surro- gate or a judge of the appellate court" (§ 2581), it is not affected by section 1335 authorizing exceptions to sureties; but it is within the discretion of the surrogate as to whether he will ascertain the sufficiency of sureties from their affi- davits of justification or will require them to attend and be examined before approving the undertaking. If the sureties are insufficient or become insolvent the remedy is to apply for 890 PART I : GENERAL PROCEDURE. Ch. 18, « 876, Form ; Undertaking to Perfect Appeal, an order vequiring a new undertaking or additional sureties ; and the Appellate Division may permit a person who appeals from the Surrogate':- Court to file a new undertaking or to do any other act necessary to perfect his appeal. [Matter of Sheldon, 117 App. Div. 357, 103 Supp. 177.) Section 372.— Form : Undertaking to Perfect Appeal, (Title of Proceeding.) Whereas on the day of , a decree (or, order) was made and eat^red, in the above entitled speeial proceeding, in the Surrogate's Court (.or, by the "surrogate) of the county of ad- mitting to probate a paper purporting to be the will of deceased, (or otherwise briefly describe decree or order, or part thereof, appealed from); and Whereas of feeling aggrieved thereby, Intends to appeal therefrom to the Appellate Division of the Supreme Court: Now, therefore, we , by occupation a residing in N. Y., and , by occupation a residing in , N. Y., do hereby, jointly and severally, undertake to and with the People of the State of New York that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. Dated at , N. Y., the day of 19. .. (Signatures.'). STATE OF NEW YORK, \ County of ) On this the day of , 19 . . , before' me the subscriber per- sonally appeared and to me per- sonally known to be the same persons described in and who executed the above undertaking, and each one severally acknowledged that he executed the same. Notary Public. STATE OP NEW YORK, ) ^^ County of j and being duly and severally sworn, each for himself says: the said that he is a resident of, and a householder (or, a freeholder) within the State, and is worth five hundred dollars, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution; and the said that he is a resident of, and a householder ( w, a freeholder) within the Ch. 13, § 373. APPEALS. 891 Form : Undertaking to Stay Execution of Decree. State, and is worth five hundred dollars, over all the debts and liabili- ties which he owes or has incurred, and exclusive of property exempt by law from, levy and sale under an execution. (Jurat.) (Signatures,) The undertaking " must be approved by the surrogate, or a judge of the appellate court " (§ 2581) ; aijd the approval must be endorsed thereon (§ 812) and may be in the following form : I hereby approve of the within undertaking as to its form and manner of execution and as to the sufficiency of its sureties. Dated at , N. Y., the .... day of 19. .. (Signature.) Section 373. — Form : Undertaking to Stay Executioji of Decree. (Title of Proceeding.) Whereas on the .... day of a decree (or, order) was made and entered, in the above entitled special proceeding, in the Surrogate's Court (or, by the surrogate) of the county of directing X. Y., the executor of the will of , deceased, to pay dollars to as an allowance for his services as special guardian of . . . ., an infant, in said proceeding (or otherwise iriefljf describe decree or order, or part thereof, appealed from) ; and Whereas said X. Y., feeling aggrieved thereby, Intends to appeal therefrom to the Appellate Division of the Supreme Court: Now, therefore, we, , by occupation a , residing in , N. Y., and by occupation a , residing in , N. Y., do hereby, jointly and severally undertake, in the sum of dollars, that, if said decree (or, order), or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires, will deposit or distribute the money or deliver the property so directed to be deposited, distributed, or de- livered, or the part thereof as to wliich the decree (or, order) is /vDated at N. Y., the day of , 19. .. (Signatures.) {Acknowledgment, affidavit of justification and approval as in next preceding form. See sec. 372 ante.) 393 PART I : GENERAL PROCEDURE. Ch. 13, §§ 374, 875. Form: Undertaking lor Stay.— Deposit in lieu of Und^aldng, This is the undertaking required to stay execution of a de- cree or order mentioned in section 2578. If the appeal is from a decree directing the payment, depositing or distribution of money or from an oriler granting leave to issue an execution, the sum specified in the undertaking must be not les§ than twice the sum to be paid, deposited, distributed or collected ; . but if the appeal is from a decree directing the delivery of property the sum specifled in the undertaking must he fixed by the surrogate, or by a judge of the appellate court. (§ 2580.) Section 374. — Form : Undertaking for Stay in case of-Gom- mitment. (Title of Proceeding.) Whereas, on the day of , a decree (or, order) was made and entered, in the above entitled special proceeding, in the Surrogate's Court (or, by the surrogate) of the county of , directing the commitment of (briefly state require- ment of the decree or order appealed from) ; and Whereas, said , feeling aggrieved thereby, intend? to appeal therefrom to the Appellate Division of the Supreme Court: Now, therefore, we, , by occupation a residing in , N. Y., and by occupation a , residing in , N. Y., do hereby jointly and severally undertake, in the sum. ot dollars, that, if said decree (or, order), or any part thereof, is affirmed, or the appeal is dismissed, the appellant will, v/itliin twenty days after the affirmance or dismissal, surrender himself in obedience to the decree (or, order), to the custody. of the sheriff of the county of , wherein he was directed to be committed. Dated at N. Y., the day of , 19 . . . (Signatures,) {Acknowledgment, affld-avit of justification and approval as in preceding forms. Sec sec. 372 ante.) Where the appeal is from a decree or order mentioned in section 2579, directing a conuuitment, the sum specified in the undertaking must be fixed by the surrogate, or by a judge of the appellate court. (§ 2580.) Section 375.— Deposit in lieu of Undertaking. In place of an undertaking to perfect an appeal, or to stay Ch, iS.Mm, 377. APPEALS. 393 -"^ecui-Ky may be Waived.— New Undertaking to be given. the execution of an order or decree appealed from, the appel. lant may deposit with the surrogate, or the clerk of the Surro- gate's Court, a sum of mono.v. oqual to the amount for which the undertaking is required The deposit has the same effect, as flliuK the undertaking; and notice that it has been made, has the same effect, as notice of the filing, and service of a copy, of the undertaking. . The court, wherein the appeal is pending, may direct the mode, in wnicn the money shall he kept and disposed of. during the pendency, or after the determination, of the appeal. (§§ 1306 d 2.57.J.) It has been held that where an appellant makes a deposit instead of giving an undertaking to perfect the appeal> his failure to depoiit a sum equal to the amount for which the undertaking should be given, is a mere irregularity which may be cured. {Lane v. Hamhcrt, 16 Dalij 186, 9 Supp. 744, 31 St. Rep. 277.) Such a deposit is subject only to the decision of the appeal to which it relates; and upon a reversal of the order or decree it is released. {Jordan v. Yolkening, 14 Hun 118.) Section 376. — Security may be Waived. An undertaking, or any other act, which the appellant is required to give or do upon an appeal, for the security of the respondent, may be icaived hy the written consent of the respondent. (§§ 1305 & 2575.) Indeed any omission or irregularity in perfecting an appeal may be waived by the act or acquie,scence of the party affected hy it. {See sec. 361 ante.) Section 377. — New Undertaking to be given when Sureties are Insolvent. The court, in which the appeal i.s. pending, upon satisfactory proof by affidavit that, since the execution of an undertaking given upon the appeal, on^or more of the sureties therein have become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is not sufficient for the security of the respon- dent, may make an order requiring the appellant to file a new undertaking, and to serve a copy thereof, as required with re- spect to the original undertaking. If the appellant fails to do so, within twenty days after the service of a copy of the 894 PART I : GENERAL PROCEDURE. Ch. 13, § 878. Action on Undertaking. order, or within such further time as the court allows, the appeal must be dismissed, or the order or decree, from which the appeal is taken, must be executed as if the original under- taking had not been given. (§§ 1308 & 2575; see Matter of meldon, 117 App. Div. 357, 103 Supp. 177.) However, where only one suretj' is insolvent, if the remain- ing surety is abundantly able to satisfy the undertaking, and the appeal is likely to be heard and disposed of without de- lay, the court may, in its discretion, refuse to require the ap- pellant to file a new undertaking. {Bering v. Metcale, 12 N. Y. 613.) But vi'here the originr.l undertrJ-ing was given to stay execution of the decree or order appealed from, and one of the sureties has become insolvent, the court will not allow a new undertaking to be filed for costs merely: it must be as broad as the original one, or the appeal will be dismissed. {Beeman V. Banta, 113 ls\ Y. 615.) After an appeal has been perfected, a motion, under section 1808, to compel the appellant to file a new undertaking, must be made to "the court, in which the appeal' is pending" and not in the Surrogate's Ooui't: that court has no jurisdiction to grant the motion. {See Parks v. Murray, 109 2V. Y. 646;- DiiBois V. Brown, 1 Dem. 317, 334.) Section 378.— Acti6n on Undertaking. It is provided in section 2581 {see sec. 371 ante), as to an undertaking given under any of the four sections (§§ 2577- 2580), next preceding it: The surrogate may, at any time, in his discretion, make an order, authorizing any person aggrieved to bring an action upon the undeTtaking, in his own name or in the name of the people. Where it Is brought in the name of the people' the damages collected must be paid over to the surrogate, and distributed bv him, as justice requires. (1880 ch. 178.) It is also specially provided in section 2579 {see sec. 369 ante), concerning an undertaking gi^en to stay the execution of a decree or order directing the commitment of a person : wfJh fi^ undertaking is broken, it may be prosecuted in the same manner, and Th^ » « '^""^ fr'' *' "° administrators official bond; and the proceeds of the action must be paid or distributed, as directed by the surro-Ite to or among the perSon.s aggrieved, to the extent of the pe.cuniary injuries sustataed by ttem ; and the balance, if a^y, must be paid into the .ou/ty treasury (1880 Ch. 13, § 379. APPEALS. 395 Proceedings where. Party Dies Pending Appeal. But, under section 1309, made applicable by section 2575, an action may not be maintained upon such an undertaking until ten days have expired since the service upon the attorney (or the appel- lant, and upon the sureties on such undertaking, of a written notice of the entry of a judgment or order, afflnning the decree or order appealed from, or dis- missing the appeal. Such service may he made by mailing such notice In a postpaid wrapper, addressed to said surety or sureties at the last known post- offlce address of such surety or sureties, ^^^lere an appeal to the Court of Appeals from thct judgment or order is perfected, and security Is given there- upon, to stay the execution of the judgment or order appealed from, an action shall not he maintained upon the undertaking given upon the preceding appeal, until after the final determination of the appeal to the Court of Appeals. (189-i ch. 108.) However, it has been held that the filing of an order of the surrogate, as provided by section 2581, authorizing a party to commence an action on such an undertaking, is the only pre- requisite to such action, and that section 1309 does not apply to an undertaking given upon an appeal from the Surrogate's Court {Hildreth v. Lerche, 10 Supp. 238, 23 AU. X. C. 428) ; but this decision was made by the City Court of New York, and the learned judge seems to have overlooked section 2575 whereby the provisions of section 1309 are made applicable to an appeal taken from a decree or order of the Surrogate's Court. Section 37§. — Proceedings where Party Dies Pending Appeal. Where a party to the-apperJ dies before the appeal u heard , the procedure is regulated by the following section, made applicable by section 2575. {See sec. 383 post.) § 1298. Pkoceedixgs, When Party Dibs, Pen-ding Appeal. — Where either party to an appeal dies, before the appeal is heard, or has heretofore died, and the appeal has not been heard, if an order, substituting another person in his place, is not made, within three months after his death, or, where be has here- tofore died, within three months after this section takes effect, the court, in which the appeal is rending, may, in its discretion, make an order, requiring all persons interested' the decedent's estate, to show cause before it, why the judgment or order aj. pealed from should not be reversed or affirmed, or the appeal dismissed, as the case requires. The order must specify a day. when cause is to be shown, which must be not less than six months aftei- making the order; and it must designate the mode of giving notice to the persons interested. Upon the return day of the order, or at a subsequent day, appointed by the court. If the proper person has not been substituted, the court, upon proof hy affidavit, that notice has teen given, as required by the order, may reverse or affirm the judgment or order appealed from, or dismiss the appeal, or make such fiirther order m the premises, as justice requires. (18T6 ch. 448 ; am'd 1877 oft. This procedure is appropriate only where a party to the appeal— either appellant or respondent— dies after the appeal S06 • PART I : GENERAL PROCEDURE. Ch. 13, §§ 380, 881. Older of Substitution— Certain Defects may be Remedied. has been taken and before it has been heard; and it has no application to a case where an aggrieved party to the proceed- ing has died, without taking an appeal, after the decree or order has be&u made therein. Section 380. — Order of Substitution. Where an adverse party has died since the order was made or the decree was rendered, and an appeal therefrom has been taken pursuant to section 1297 "as if he was living" {see sec. 357 ante), the order substituting the heir, devisee, ex- ecutor or administrator as a respondent must be made by the appellate court; and the order of substitution, referred to in section 1298 where either party to an appeal dies before the appeal is heard, also must be made by the appellate court. Each of these cases comes within the terms of the following section, made applicable by section 2575 {see sec. 383 postj) § 1299. Ordee of Substitution. — iWheie the appeal is from one court to anottier, an application for an order of substitution, as prescribed by tlie last three sections, must be made to the appellate court. Where personal service of notice of application for an order has been made, within the State, upon the proper representative of the decedent, an order of substitution may be made, upon the application of the surviving party. (1876 ch. 448.) Section 381. — Certain Defects may be Remedied. Where in due season a partial service of the notice of ap- peal has been made, the following section, made applicable by section 2575, authorizes certain omissions to be supplied: § 1303. Defects ix Peoceedixg.'s M.iV be Supplied. — Where the appellant, seasonably and in good faith, serves the notice of appeiil, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inad- vertence, or excusable neglect, to servo it upon the other, or to do any other act, necessary to perfect the .ippeal, or to stay the execution of the judgment or order appealed from ; the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omis^sion to be sup- plied, or an amendment to he made, upon such terms as justice requires. (1879 ch. 448.) Ordinarily amendments of this sort are allowed as a mat- ter of course aiid an opportunity to perfect his appeal is granted to a party who w willing to supply the defects or errors in his proceedings {Tiavis v. Travis, 48 Hun 343, 1 Supp. 357, 15 St. Rep. 874) ; but no amendment can be allowed which even indirectly enlarges the time to appeal. {Lavalle V. Skelly, 90 A'. Y. 546.) Thus a notice of appeal from a de- cree cannot be amended, after the time to appeal has expired, Ch. 13, § 383. APPEAL8. 897 When Appeal Perfected and Proceedings Stayed, by specifying therein an intennediate order which the appel- lant seeks to bring up for review {Piper v. VanBuren, 27 Hun 384; Patterson v. McCunn, 38 Hun 531, 9 Civ. Pro. Rep. 122) ; and permission to make an omitted service upon the clerk will not render the appeal effective as to a party who had not been served at all within the time fixed by the statute. {Hall V. City of Xeir York, 79 App. Div. 102, 79 Supp. 979.) But, where the notice of appeal has been served seasonably the ap- pellant may be allowed to file the requisite undertaking when he has, through mistalce or inadvertence, omitted to do so ^ / within the proper time. {See sec 359 ante; also Agricultural - ^J^i^^^v<^lfi^iipp. 662.) In the Gowdey case, which was an appeal from a surrogate's order that did not speciiy the papers used on the motion, the Appellate Division said : Said rule (.41) requires that the papers used in the court below shall be so specified in the order. Where they are so specified in the order such papers, with the order appealed from and the notice of appeal, must be printed, filed and served as provided by said rule. If the papers used in the ^court below are specified in the order it results in a determination by the court making the order appealed from as to what papers shall be printed if an appeal is taken from the order, and the certificate of the clerk is then simply for the purpose of establishing the fact that the papers so printed are true copies of the originals required by the rule to be printed. It will be necessary for the appellant to have the order appealed from amended so as to specify the papers which were used in the court below, and print and serve the papers so specified with the order and notice of appeal, or the appeal will on proper motion be dismissed. Section 394. — Papers to be Transmitted to Appellate Divi- sion. There seems to be nothing in the Code making applicable, to appeals from the Surrogate's Court, that provision of sec- tion 1315 which specifies the papers to be transmitted to aa appellate court upon appeals generally, and regulates the manner of transmission. It seems, therefore, that rule 41 of the General Rules of Practice furnishes the only direction in this particular when the appeal is from an order or decree of the Surrogate's Court; and its requirements should be ob- served. It will be noted that the papers to be transmitted, pursuant to this rule — which are to constitute the record in the Appellate Division, and of which a printed copy must be 408 PART I : GENERAL PROCEDURE. Ch. 13, §395, Powers of Appellate Division on Appeal upon Facta. filed with its clerk — are required to be " certified by the proper clerk, or stipulated htj the parties to be true copies of the original " ; and so it appears that, where the record has been made up properly and filed in the surrogate's oifice, the printed coi.y of it, to be filed vnth the clerk of the Appellate Division, may he stipulated by the parties instead of being certified by the clerk or the surrogate. There is a provision in ^■^ction 3301 — relating to clerk's fees in civil actions generally — which authorizes attorneys to " stipulate in writing that a paper is a copy of any paper whereof a certified copy is required by any provision of this act," and thereupon, " the stipulation takes the place of a cer- tificate, as to the parties so stipulating, and the clerk is not required to certify the same or entitled to any fees therefor." This provision vi-as not in the neclion, as originally adopted, and was added by an amendment (1882 eh. 399) ; but the sec- tion itself does not apply to the clerk of a Surrogate's Court (§ 3302), and it has been questioned v.^hether a case, on ap- peal from the Surrogate's Court, may be stipulated at all, notwithstanding rule 41. However, the matter seems to be settled by a recent amendment (1004 ch. 137) to section 2567 {see sec. 22 ante), adding to it the following: Where in a proceeding in tlie Surrogate's Court ttie attorneys for all the adult parties intcij^Siod and special guardians, or general guardians, appearing for all infant parties interested, other tlian parties in default, or against whom a final order has l:ecn taken and is not appealed from, stipulate in writing that a paper is a copy of any paper whereof a certified copy is required by any provision of this act, the stipulation talies the place of a certificate as to the parties so stipulating, and the surrogate or his clerlt is not required to certify the same or entitled to any fee therefor. And the paper s_o proved tiy stipulation sliall he received by the clerks of all the courts and by the courts, and shall be used or tiled with the same force and effect as if certified by the surrogate or his clerk. (1904 ch. 137.) There is no provision, however, authorizing any stipulation of parties, in place of the indispovsahle certificate hy the sur- rogate that a case, required to be settled and signed by him, contains all the cridence; and the record must have this cer- tificate else the Appellate Division will not consider any appeal upon the facts. (»S'('e sec. 390 ante.) Section 395. — Powers of Appellate Division on Appeal i/poi Facts. ^ Where the appeal is U2}on the facts the powers of the Appel- late Division are thus defined : Ch, 13, § 395. APPEALS. 409 Powers of Appellate Division on Appeal *pon Facts. I 2586. PowEK OP Appellate Coukt; FUBTHEit Testimony. — Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surrogate had ; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee. (1880 cli. 178.) This section only concerns an appeal to the Supreme Court and the words " the appellate court " as there used do not in- clude the Court of Appeals. {Matter of Ross, 87 X. Y. 514; Davis V. Clark, 87 N. Y. 623.) The power upon appeal to receive further testimony and appoint a referee was formerly possessed by the Court of Chancery on an appeal from a surrogate's decree; and, after- wards, by the Supreme Court succeeding to the chancery jiir; isdiction. When an appeal, upon the facts, comes before the Appellate Division a party may move for a reference to take further proof upon the subject-matter involved therein, and, if the motion be granted, the ca.se will thereafter be heard upon the record from the Surrogate's Court and any addi- tional testimony reported by the referee. When such a ref- erence is had, there will be presented to the appellate court substantially a new cai^e upon Avliich the court makes a deter- mination that is practically an original one. {Matter of Farmei-'s Loan & Trust Co., 47 App. Die. 448, 62 Snpp. 359.) However, this power to receive additional testimony seldom is exercised because it opens the case and gives a re-hearing on new evidence before the appellate tribunal {Matter of Hannah, 45 Hun 561, 10 St. Rep. 638; Matter of Gaines, 74 Hmv 94, 26 Supp. 312, 56 St. Rep. 172), thus making it a trial court. This power was exercised in the early case of Caufolle's Appeal (9 Ahb't. Pr. 393), and also, more recently, on the motion of the court itself, in Matter of Banks (108 App. Div. 181, 95 Supp. 505), and in Matter of Burr (116 App. Div. 518, 101 Supp. 776) ; but the instances are rare. The Appel- late Division usually remits a case to the surrogate to take proof of missing facts — if good cause be shown. {E. g. Matter of Tyndall. 117 App. Div. 294, 102 Supp. 211.) In exercising this power to receive further evidence the Appellate Division may reinstate testimony, as evidence in the cause, which has been stricken out by the surrogate but is contained in the record, and dispose of the case upon that testimony with the other evidence {Matter of Beck, 6 App, 410 PART I : GENERAL PROCEDURE. Ch. 13, § 895. Powers of Appellate Division on Appeal upon Facts. Div. 211, 39 Supp. 810, affd 154 JV. Y. 750) ; and if competent evidence has been rejected by the surrogate but appears in the printed record and the Appellate Division, treating it as though it were in the case, can see that the conclusion reached by the surrogate is nevertheless correct, the decree will not be reversed. (Horn v. Pullman, 72 y. Y. 269; Matter of Rice, 81 App. Div. 223, 81 Sn^p. 68, aff'd 176 N. Y. 570; see § 2545.) Moreover, the power of the Appellate Division, in reviewing a decision of the surrogate, is not limited to the question whether there is evidence to support the decree appealed from, but, by section 2586, that court is vested with the "same power to decide the questions of dfci, which theTsutfrogafe had " ; and, when such questions are presented by the appeal, the whole record is to be examined upon the facts as well as upon the law and the Appellate Division will determine for itself whether the case was correctly decided (Matter of Sogers, 10 App. Div: 593, 42 8upp. 133; flatter of Drake, 45 App. Div. 206, 60 Supp. 1020; Mlatter of Welling, 51 App. Div. 355, 64 Siipp. 1025 ; Matter of Warner, 53 App. Div. 565, 65 Siipp. 1022; Matter of Hall, 61 App. Div. 266, 70 8upp. 406; Matter of Rossell, 121 App. Div. 381, 105 Supp. 1098, Matter of Campbell, 123 Apjx Div. 212, 108 Supp. 281), and it may supply any needful finding of fact, omitted from the surrogate's decision or a referee's report, which is' deducible from the evidence. (Matter of Snedeker, 95 App. Div. 149, 88 Supp. 847.) Indeed a revievv' on the faxyts by the Appel- late Division, of a decision of the surrogate, amounts to a hear- ing (Bivrger v. Burger, 111 A'. Y. 523) ; and, where the evi- dence is conflicting or of such a nature as to justify different inferences, its determination on questions of fact cannot be reviewed. (Kingsland v. Murray, 133 Isf. Y. 170; Matter of Laudy, 148 N. Y. 403.) Under the Constitution, the jurisdic- tion of the Court of Appeals is limited to questions of law; and it has no power to review an order or judgment of the Appellate Division on a question of fact. (Matter of Thome, 162 N. Y. 238.) But the Appellate Division cannot make a question of fact just by declaring there is one; and, upon an appeal from its order reversing a Surrogate's Court decree upon the law and the facts, if the inferences from the uncon- Ch, 13, § 396. APPEALS. 411 Other Specified Powers of Appellate Division on Appeal. tradicted evidence all point one way so that a reasonable mind can reach but one conclusion, there in no question of fact and the Court of Appeals has jurisdiction. {Matter of Totten, 179 -A'. Y. 112.) But section 258G, in conferring upon the Appellate Divi- sion " the same power to decide the questions of fact, which the surrogate had," is modified by section 2588 which re- quires a jury trial of the material questions of fact in a pro- hate case where there has been a reversal or' modification upon tlie facts of a Surrogate's Court decree; and in all such cases section 2588 controls and a jury trial must be ordered. {Mat- ter of Laucly, 148 -A. Y. 403; Matter of Hopldns, 176 iV. Y. 595; Matter of Tuttle, 12.3 App. Div. 167, 108 Supp. 133.) If, however, the record shows that there actually was no conflict of evidence it is proper for the Appellate Division, on revers- ing a decree refusing probate, to direct the surrogate to ad- mit the will to probate even though the order of the Appellate Division states that the reversal was upon questions of fact as well as of law. {Matter of Will of Martin, 98 ls\ Y. 193; Mfhtter of Hunt, 110 N. Y. 278.) Except as thus limited in probate cases the power of the Appellate Division to decide the questions of fact, where an appeal is taken upon the facts, seems to be without restric- tion; but, in the discreet exei'cise of this power, it will allow proper weight to the circumstance that the surrogate has had the advantage of seeing and hearing the witnesses. {Matter of Arkenhurgh, 38 App. Div. 473, 478, 56 Supp. 523.) Section 396. — Other Specified Powers of Appellate Division on Appeal. It is provided by subdivision 6 of section 2481, that, upon an appeal from a determination of the surrogate made upon an application to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause, the Appel- late Division ''lias ilie same power as the surrogate; and his determination must be reviewed, as if an original application was made to that " court. {See sec. 372 ante.) 412 ' PART I : GENERAL PROCEDURE. Ch. 13, § 397. Judgment or Order upon Appeal. This provision modifies tlie rule that a discretionary ordep of one court will not be reviewed by another- court except for such abuse of discretion as constitutes an error of law. In- deed an appeal from a surrogate's order, made under subdivi- sion 6 of section 2481, practically presents to the Appellate Division an original application for the relief sought by the motion before the surrogate. Section 397. —Judgment or Order upon Appeal. I'rovision is made for the judgment or order of the appel- late court: § 2587. JoDGMEMT OE Obdbr upon Appeal, — The appellate court may reverse, affirm, or modify the decree or order appealed from, and each inter- mediate order, specified in the notice of appeal, which it is authorized by law to review, and as to any or all of the parties ; and it may, if necessary or proper, grant a new trial or hearing. The decree or order appealed from may he enforced, or restitution may be awarded, as the case requires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a Judgment. (1880 ch. 178.) Under the former statute regulating appeals from the Sur- rogate's Court it was held that there iw always a presumption that thp- surrogate's decree is correct so that it will not be reversed' unless afflrmatively shown to be erroneous (Roll- wagen v, kollwagen. 3 Hun 121, 128, uff'd G3 A'. Y. 504) ; but in the pi'esent practice there seems to be no such presump- tion. Where an appeal is upon the facts, the Appellate Divi- sion has the same power as the surrogate to decide the matter (§ 2586) ; and the solution of a question of law seldom is in- fluenced by any presumption that the determination of the court below is correct. Howevier it is expressly provided in section 2545 : An appeal from a decree or an order of a Surrogate's Court brings up for review, by each court to which the appeal is carried, each decision, to which an exception' is duly taken by the appellant, as prescribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant Avas necessarily prejudiced thereby. (See sec. 252 ante.) An appeal from a decree of the Surrogate's Court to the Appellate Division is like a rehear^Jing in equity (see sec, 395 ante) ; and to justify the reversal of such a decree, merely because of erroneous rulings upon the evidence, it must ap- pear that, had the rejected e^adence been received, the appel- lant's case would not have failed, or that without the improper Ch. 13, § 398. APPEALS. 418 Jury Trial upon Reversal in Probate Cases. evidence the respondent would not have succeeded. (Brick v. Brick, 66 N. Y. 144; Horn v. Piilhimn, 72 X. Y. j^9; Snyder V. Sherman, 88 N. Y. 656; Matter of Accounting of Morgan, 104 N. Y. 74; Loder v. Whcljilcy, 111 .V. Y. 239; Mlatter of Miner, 146 N. Y. 121; Mofter of Xciccomt), 192 jV. Y. 238, 254; Matter of Torkington, 79 Hun 128, 29 . 433, 61 St. Rep, 426; Matter of Degen, 89 Hywi 143, 34 Supp. 1137, 68 St. Rep. 869; MaMer o/ Seagrist, 1 App. Dif. 615, 37 Siipp. 496, af'cJ 153 N. Y. 682.) But where incompetent evidence has been received, or competent evidence rejected and it appears that the evidence was important and material, but the appellate court cannot say, notwithstanding the error, that the decree is right, or if it entertains a reasonable doubt upon the sub- ject, then a case is presented where the party excej)ting was " necessarily prejudiced " within the meaning of section 2545 and the court will reverse the decree. (Matter of Smith, 95 2V. y. 516, 526; Matter of Ryalls, 74 Hmi 205; s. c.^as In re Haney's Estate, 26 Supp. 815, 56 St. Rep. 291.) And the Appellate Division will grant a new trial or hearing also where the facts are not sufflcieiitly before that court to en- able it to modify a decree in accordance with its determina- tion upon the questions brought up by the appeal (Matter of Teed, 59 Hun 63, 68, 12 Supp. 642, 35 St. Rep. 531; Matter of Tyndall, 117 App. Div. 294, 102 Supp. 211; 3Iatter of Duffy, 127 App. Div. 74, 111 Supp. 77) ; but otherwise it may modify the decree and render such a judgment as the surrogate should have entered. (Matter of Kellogg, 104 N. Y. 648, 1 Silvernail Ct. of App. 313.) Section 398. — Jury Trial upon Rieversal in Probate Casfes. It is provided in section 2588 (see sec. 279 ante) : Where the reversal or modiflcation of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order, directing the trial, by a Jury, of the material questions of fact, arising upon the issues between the parties. But it is only when the Appellate Division and the surro- gate have differed upon a material question of fact that a jury trial must be awarded; and such a_trial is not required where the evidence is insufflcient to raise a question of fact within 4 PART I : GENERAL PROCEDURE. Ch. 13, § 398. Jury Trial upon Reversal ja Probate Cases. le legal meaning of that term (Matter of Hunt, 110 N. 7. '8; Matter of Bapplee, G6 Htt?}^ 558, 21 Supp. 801, 50 St. Rep. 19, aff'd 141 X. r. 553; Matter of Hardenburg, 85 Him 580, ! 8upp. 150, 66 St. Rep. 775), oi- where the surrogate's de- ■ee is reversed upon a question of law. {Matter of Martin/ i X. Y. 193.) In Matter of Hunt (110 .V. 1'. 278, 283) Judge RAY, writing for the court, .says, concerning section 2588 : — We think the statute should receive a reasonable construction, and that literal obedience is not to be given to its language, where it would work an unreasonable, if not absurd result. The language iu this section requires an order for a jury trial only where the reversal "is ■ founded upon a question of fact," and the Legislature undoubtedly intended that only where such was actually the case, and there was a real conflict of evidence, and the Surrogate's Court and the Supreme Court differed on the case, should the conflict be settled by a jury trial in the mode prescribed. But that a new trial before a jury should be deemed necessary, when there is no conflict in the facts, and the matter is one of the conclusions from the facts, is not a construction reconcilable with reason, and We should refuse our sanction to such a construction. However, where, in a probate case, the reversal or modifi- tion of a decree is upon a question of fact a jury trial inust awarded if there be any conflict of evidence; and the true st is this: With such evidence produced on a jury trial uld the court properly take the case from tlie jury and de- rmine the matter as a question of law? {Matter of Laudy, 8 iV. Y. 403.) The Court of Appeals recently has placed a further con- ruction upon section 2588^and, incidentally, upon its own iwers — which is worthy of more than a passing reference. . Matter of Hoplins (35 Misc. 702, 72 Supp. 415) the surro- te admitted to probate a well executed will which showed urteen vertical ink marks through the testator's signature; it there had been a contest as to whether the testator re- ked the will or whether these marks were made by some her person. The facts apparently were not in dispute al- ough there was a conflict of presumptions arising from em; but, under objections, the proponent was allowed to in- oduce certain expert testimony showing that the marks had Ch. 13, § 398. APPEALS. 415 Jury Trial upon Reversal in Probate Cases. not been written by the testator. The surrogate's decree was affirmed in the Appellate Division, by a divided court {Mat- ter of Hopkins, 73 App. Div. 559, 77 Supp. 178) ; but it was reversed by the Court of Appeals which remitted the case for a jury trial " to detennine whether the will in question was re- ^ voked by the testator." (Matter of Hopldns, 172 i\^. Y. 360.) t/'dl^ The ^ourt decided the case on a question of law — because improper testimony had been admitted — and did not pass upon any question of fact ; but its opinion discloses no sugges- tion, even, as to how such a reversal is founded " upon a question of fact " so as to authorize the court, under sec- tion 2588, to " make an order directing the trial, by a jury, of the material questions of fact, arising on issues between the parties." Subsequently, upon certain intermediate applica- tions {Matter of Hopkins, 41 Misc. 83, 83 Supp. 890), the learned sxirrogate, in an instructive opinion upon the practice, took occasion to review the proceedings up to tliat time. Evi- dently, however, he was at a loss to understand why the Court of Appeals, having reversed the decree upon a question of law, should have directed a new trial before a juiy and not before the surrogate; but he suggested that the question was one for that court to decide upon an application to amend its remittitur. Thereupon the question was presented to the Court of Appeals — not on a motion to amend the remittitur, however, but — on a motion for reargument which was denied {Matter of Hopkins, 176 U. Y. 595) with this clarifying opin- ion, written by Chief Judge Parker : The motion for reargument must be denied, without costs, on the ground that the question presented is no longer open for discussion in this court. In reported and unreported cases we have often decided — too often, to now discuss the question — that since the enactment of the statute, now to be found in section 2588 of the Code, an appellate court must "make an order directing the trial by a jury of the material questions of fact arising upon the issues between the iDarties " where the reversal or modification of a decree by the appellate court is founded upon a question of fact, and that the appellate court may do it in any other case where, in its opinion, it would seem that the ends of justice might be best promoted by such a course. 416 ■": PART I : GENERAL PROCEDURE. Ch. 18, § 398. Jury Trial upon Reversal in Probate Cases. Undoubtedly the appellate court must " make an order directing the trial by a jury of the material questions of fact arising upon the issues between the parties" where" the re- versal or modification of a decree is founded upon a question of fact (§ 2588) ; but it is regrettable that the learned chief judge did not illumine the subject by citing some of those cases wherein the Court of Appeals has decided that the ap^ pellate court "may do it in any other case where, in its opiui ion, it would seem that the ends of justice might be best promoted by such a course." We have sought carefullj through the reports for such a decision, but without success, and are forced to believe that it is to be found only among the unreported cases referred to. It may be, however, that this portion of the opinion is merely a dictum and not the decision of the court which simply denied a reargument; but it is not yet prudent to assume that section 2588 has been ex- tended, by judicial interpretation, so as to empower an appel- late court, upon a reversal or modification of a probate decree, to award a jury trial in any " case where, in its opinion, it would seem that the ends of justice might be best promoted by suclT a course " — inasmuch as the authority to award a jury trial, by the terms of the statute, is limited expressly to a case " where the reversal or modification of a decree by the appellate court is founded upou a question of fact." As hereinbefore noted (sec. 386 ante) the settled rule, pur- suant to which the Appellant Division determines appeals upon questions of fact, in jjrohate cases., is this: If it shall appear that the disposition of questions of fact, presented bj the evidence is not free from doubt and the surrogate's de- cision is not satisfactory to the appellate court, the questions of fact will be sent to a jury for trial. (Matter of VanHouten, 11 App. Div. 208, 42 Supp. 919; Matter of Dixon, 42 App. Div. 481, 59 Supp. 421; Matter of Dralce, 45 App. Div. 206, 60 Supp. 1020; Matter of Tompkins, 69 Ajjp. Dir. 474, 74 Supp. 1002; Matter of War nock, 103 App. Div. 61, 92 Supp. 643; Matter of Burtis, 107 App. Div. 51, 94 Sivpp. 961; Matter of Finch, 115 App. Div. 871, 101 Supp. 135.) We repeat the suggestion made elsewhere (see sec. 355 OMte) that it is unwise to appeal, upon questions of /act,, from Ch. 13, § 399. APPEALS. 417 Proceedings upon Decision by Appellate Division. a decree admitting a will to probate or revoking its probate, because a favorable determination of the appeal necessarily leads to a jurj trial under section 2588; and such a trial can be obtained, without appeal and as a matter of right, under section 2653a which authorizes any person interested in a pro- bated will to cause the validity or invalidity of its probate to be determined by a jury in an action brought in the Supreme Court for that purpose. (Matter of Beck, 6 App. Div. 211, 39 Supp. 810, aff'd 154 N. Y. 750; Blatter of Austin, 35 App. Div. 278, 55 Supp. 52; Matter of Wells, 45 App. Div. 626, 60 Supp. 1100; iMatter of Brand, 68 App. Div. 225, 73 ISupp. 1073; and see Wells v. Betts, 45 App. Div. 115, 61 Supp. 231; Beid V. Curtin, 51 App. Div. 545, 64 8upp. 833; Mock v. Garson, 84 App. Div. 65, 82 Hiipj}. 310.) Section 399. — Proceedings upon Decision by Appellate Divi- sion. Section 2585 provides for a remittitur by the Appellate Division : § 2585. Appeal ; Proceedings THuitEUPON. — In the Appellate Division of the Supreme Court the ordei' made upor nn appeal from a decree or an order of a Surrogate's Court must be entered with the clerk of the Appellate Division, and a certified copy thereof annexed to the papers transmitted from the court below upon which the appeal was heard, must be transmitted to the court from which the appeal was taken, and the court below shall enter the judgment or order necessary to carry the determination of the Appellate Division into effect. (1895 ch. 946.) This section assumed its present form by amendment (1895 ch. 946) after the Constitution of 1895 was adopted; but as enacted in 1880, and as it continued until 1895, it was as fol- lows: In the Supreme Court, an appeal from a decree or an order of a Surrogate's Court must be heard, the judgment, or an order made thereupon, must be entered, and the papers must be filed, in the same manner, and the effect of the judgment, with respect to the proceedings in the Surrogate's Court, is the same, as where an appeal is taken to the Supreme Court, from -a final judgment or an order of an inferior court, as prescribed in title third of chapter twelfth (§§ 1340-1345) of this act. Comparison shows that the amendment effected such a radical change of procedure as to make obsolete many previ- ous decisions. Under the original section the record was not transmitted from the appellate court to the Surrogate's Court; but the judgment of the Supreme Court upon the appeal was required 418 - » PART I : GENERAL PROCEDURE. Ch. 13, § 399. Proceedings upon Decision by Appellate Division. to be entered in a judgment book kept in the office of the county clerk, and the judgment roll — consisting of a certified copy of the judgment annexed to the record transmitted from the Surrogate's C'ourt — wan lequired to be filed in the 'same office. The filing of this judgment roll was made sufficient authority for any further proceedings in the Surrogate's Court, which the judgment or order of the appellate court directed or permitted (§ 1345 d former § 2585); but there was no provision for resforing the special proceeding to the Surrogate's Court after a decision upon the appeal, or for moving the Surrogate's Coui't to action pursuant to the order or judgment of the Supreme Court. It is obvious that, by these earlier provisions, an appeal from the order or decree of a Surrogate's Court did carry the entire special proceeding out of that court and into the Supreme Court so effectually that no subsequent order or decree could be made therein, except hy the Supreme Court, until the appeal had been disposed of, and, by some mysterious process, not even hinted at in the Code prior to 1895, the proceeding had wandered back into the Surrogate's Court. {See Hatter of Patterson, 63 Hun 529, 18 Supp. 499, 44 St. Rep. 842.) But by section 2585, as it now stands, a certified copy of the Appellate Division's order " made upon an appeal from a decree or an order of a Sui*rogate's Court," together with the original record sent up from that court upon the appeal, must he transmitted to the Surrogate's Court, and, when this has been done, it seems that the proceeding has passed out of the Supreme Court and is again in the Surrogate's Court; for while The appellate court may reverse, afQrm, or modify the decree or order appealed from, and each intermediate order, specified in the notice of appeal, which it is authorized by law to review, and as to any or all of the parties ; and it may, if necessary or proper, grant a new trial or hearing. (§ 2587; see sec. 397 ante), yet, whatever the decision may he, a certified copy of the order embodying that decision, " annexed to the papers trans- mitted from the court below upon which the appeal' was heard " — i. e., the original record — is sent back to the Surro- gate's Court and that court, by virtue of the statutory man- date (§ 2585), must " enter the judgment or order necessary to carry the determination of the Appellate Division into effect" Ch. 13, § 400. APPEALS. 419 Proceedings when Appellate Court Awards Jury Trial. Apparently, by the amendment of 1895, the practice on an appeal from the Surrogate's Court to the Appellate Division has been assimilated to the practice on an appeal from the Supreme Court to the Court of Appeals; and, just as the Court of Appeals loses jurisdiction when it sends down its remittitur to the court below, so the Appellate Division loses jurisdiction when it sends down its remittitur to the Surro- gate's Court and can resume jurisdiction only by recalling that remittitur. The new practice comports with the dignity of the Surro- gate's Court as an important court of record; and according to it, when the Appellate Division has sent down its remit- titur, an order must be entered by the surrogate making the order of the Appellate Division the order of the Surrogate's Court. Until this has been done no further step can be taken properly in the proceeding. (Matter of Hopkins, 41 Misc. 83, 83 Supp. 890, aff'd 95 App. Div. 57, 87 Supp. 793.) Section 400. — Proceedings when Appellate Court Awards Jury Trial. Where, upon a qtKstion of fact, the appellate court re- verses or modifies a decree of the Surrogate's Court made upon a petition to probate, or to revoke the probate of, a will, the court is required by section 2588 (see sec. 279 ante) to " make an order, directing the trial, by a jury, of the material ques- tions of fact, arising upon the issues between the parties." Such an order must state, distinctly and plainly, the questions of fact to be tried ; and must direct the trial to talse place, either at a trial term of the Supreme Court specified in the order ; or in the County Court of the county of the surrogate. After the trial, a new trial may be gi'auted, as prescribed in section 2548 of this act. (§ 2588; see sec. 279 ante.) ""•n^ It is held that this provision applies to the Court of Ap- peals — although it cannot review the facts — as well as to the Appellate Division ; and that the requirement is obligatory upon each court. (Matter of Hopkins, 172 N. Y. 360 & 176 iV. y. 595.) The further proceedings, after a jury trial has been ordered by the Appellate Division, are not specially prescribed by the Code — the only direction in that regard being that " after the 420 ~ PART I : GENERAL PROCEDUlfe. Ch. 13, § 400. Proceedings when Appellate Court Awards Jury Trial. trial, a new trial may be granted, as prescribed in section 2548. of this act" which outlines the procedure where a jury trial of an issue of fact is ordered ly tlie surrogate in a special proceeding to dispose of a decedent's real property for the payment of his debts. That section directs that the verdict of the jury, upon sixcli a trial, must be certified to the Surro- gate's Court by thes clerk of the court in which the trial took place; and this is held to be the proper procedure where a jury trial is ordered by the appellate court upon reversing a decree in a probate case. (Blatter of Laudy, 35 App. Div. 542, 55 Supp. 98.) But after the appellate court has made its order "direct- ing the trial, by a jury," as prescribed in section 2588, and a certified copy of it stating " distinctly and plainly the ques- tions of fact to be tried," annexed to the original record, has been transmitted to the Surrogate's Court, as prescribed in section 2585, and the Surrogate's Court has entered the " judg- ment or order necessary to carry the determination of the Appellate Division into effect," as also prescribed in section 2685, what is the correct procedure to bring these questions of fact before the trial court for the jury trial? Although the practice in this particular is not regulated by the Code yet it seems to be suggested in certain other provisions of it. By section 2547, empowering the surrogate to direct a jury trial in a proceeding for the disposition of a decedent's real prop- erty, it is provided that the order of the surrogate " is the only authority needed for the trial"; and where, under the same section, either surrogate of New York county sends to the Supreme Court a probate proceeding, for trial of the facts I arising therein, " the order transferring such proceeding js< the only authority necessary for the trial in the Supreme Court of such issues of fact." The questions of fact in a pro- bate case, ordered by an appellate court to be tried by a jury, should be brought before the trial court l)y a similar pro- cedure. It is true that the order for the jury trial emanates from the appellate court which alone has power to direct it; but, if that court be the Appellate Division, a certified copy of such order must be transmitted to the Surrogate's Court and that court is required to " enter the judgment or order necessary to carry the determination of the Appellate Divis- Ch. 13, § 400. APPEALS. • 421 Proceedings when Appellate Court Awards Jury Trial. ion into effect" (§ 2585) ; and, if the appellate court be the Court of Appeals, its judgment or order " must be remitted to the court below, to be enforced according to law." (§ 194.) At this point the proceeding is again in the Surrogate's Court which, howeA'^er, is powerless to interfere or act therein at all (Matter of Murphy, 79 App. Div. 541, 81 8upp. 102) except to enter the proper judgment or order, based upon the remit- titur from the appellate court, making effective the deter- mination of that court or enforcing it according to law. (§ 2585). Inasmuch as such judgniB^t [decree), or order, will recite the order transmitted by the Appellate Division, or the judgment or order remitted by the Court of Appeals, and must conform strictly to the remittitur (Zapf v. Garter, 90 App. Div. 407, 86 Sii^pp. 175 ; Matter of Hopkins, 95 App. Div. 57, 87 Supp. 793), it will disclose precisely " the questions of fact to be tried ", and also the court wherein the jury trial is to be had, as directed in the order of the appellate court. Undoubtedly it is the correct practice to enter a certified copy of this judgment or order of the Surrogate's Court with the clerk of the trial court, as evidence of the authority of that court to try the issues before a jury as directed by the appel- late court; for, be it remembered, it is the Surrogate's Court which is commanded by the Code to " enter the judgment or order necessary to carry the determination of the Appellate Division into effect." (§ 2585; see sec. 399 ante.) There are several dicta of learned judges which seem to conflict with these views {see Matter of Laudy, 35 App. Div. 542, 55 8upp. 98; Matter of Murphy, ^Q App. Div. 541, 81 Supp. 102; Matter of Hopkins, 95 App. Div. 57, 87 Supp. 793) ; but these dicta are obiter and reflect the earlier practice — be- fore the amendment to section 2585 — which made no provision for any return of a proceeding into the Surrogate's Court after it had been taken out of it by an appeal to the Supreme Court. Moreover, it is no uncommon practice among attorneys to obtain, from the surrogate's ofiice, the remittitur itself and present it to the trial court as evidence of its authority to try the specified issues of fact which the appellate court has directed to be tried by a jury; but no law can be found per- 433 PART I : GENERAL PROCEDURE. Ch. 13, f 401. Order of Surrogate on Remittitur of Appellate\ Court Directing Jury Trial. raitting such a procedure which is irregular, to say the least. Perhaps a certified copy of such a remHtitur, might be filed with the clerlv of the trial court as evidence of its authority for the trial ; but the better practice is as hereinbefore indicated. Section 401.— Form : Order of Surrogate on Remittitur of Appellate Court Directing Jury Trial. At a Surrogate's Court, in and for the county of , held at the office of the surrogate in the city of , N. Y., the day of 19. .. Present, Hon , I Surrogate. [(Title of Proceeding.) A decree in this special proceeding having heen rendered by our Surrogate's Court on the day of , 19. ., whereby an instru- ment propounded as the will of the above named , deceased, was admitted to probate, and thereafter , a contestant, having appealed therefrom to tlie Appellate Division of the Supreme Court, and the Appellate Division having heard his appeal and made its order thereon, (*) and having now sent hither a certified copy of such order annexed to the papers heretofore transmitted from this court to said Appellate Division, and upon which said appeal was heard; and it appearing therefrom (set forth exactly the directions in the order^. c:s. for instance,) that our decree so appealed from is re- versed, with costs to said appellant to abide the event payable out of th'e estate, anti that the following questions of fact are ordered to be tried by a jury at a Trial Term of the Supreme Court to be held in and for the county of commencing on the .... day of , 19.., viz; FiKST.-^Was' the alleged testator competent to make a last will and testament at the time the will proposed for pro- bate was alleged to have been executed? second. — ^Was such will, if executed, the free and voluntary act of the decedent? thied. — ^Was the will offered for probate signed and executed by the decedent? (In case there has been an appeal to the Court of Appeals, continue from (*) e. g.. aiiirming our said decree in all respects and thereafter said having appealed from said order of the Appel- late Division to the Court of Appeals and the Court of Appeals having heard his appeal and gendered its judgment thereon, and having now sent hither 'its remiitiiur" to the end that this court shall enter the judgment or order necessary to carry into effect the determination of the Court of Appeals; and ib appearing therefrom that said order of the Appellate Division, and our bwii decree so appealed from are re- versed, 'with-costs to said appellant to abide the event, payabte'out of th6 Ch. 13,§402. APPEALS. 423 Proceedings upon Verdict of the Jury. estate, and that the following questions of fact are ordered to be tried by a jury at a Trial Term of the Supreme Court, to be held, {etc., proceed as above.) Now, therefore, as required by section 2&85 of the Code of Civil Procedure so as to carry said determination of the Appellate Division (or, Court of Appeals) into effect (and on motion of , Esq., attorney for said ) , It is obdereb that said order of the Appellate Division (or, judg- ment of the Court of Appeals) be, and the same hereby is, made the order of this, our Surrogate's Court. (And it is fuethee oedeeed that our said decree, so appealed from and reversed, be held for naught; and that probate of said instru- ment, propounded as the will of ., deceased, be denied pending the final determination of said questions of fact so ordered to be tried by a jury.) Surrogate. Under section 2585, after an appeal has been heard or dis- missed, the whole record previo.usly transmitted to the Appel- late Division, together with a certified copy of its order an- nexed, is returned to the Surrogate's Court; and it is the Surrogate's Court — the court below — which is required to " enter the judgment or order necessary to carry the deter- mination of the Appellate Division into effect." And if the proceeding has been taken into the Court of Appeals, When the appeal has been disposed of there, likewise " the judgment or order of the Court of Appeals must be remitted to the court below " — the Surrogate's Court — " to be enforced according to law." (§ 194.) Section 402. — Proceedings upon Verdict of the Jury. After a jury trial of the questions of fact in a prolate case, pursuant to an order of the appellate court, the verdict should be certified to the Surrogate's Court by the clerk of the court in which the trial curred. (JIattcr of Laudy, 35 App. Div. 542, 55 Siqip. 98.) The purpose of the trial is merely to settle questions of fact upon which the surrogate and the appellate court have differed (Marvin v. Marvin, 4 Keyes 91) ; and th6 case is in the Supreme Court or County Court simply for a jury trial of those questions. Neither court, however, has any 434 PART I : GENERAL PROCEDURE. Ch. 13, § 403. Review oi Jury Trial: Motion for New Trial. authority in the case, after the trial has bfpn had and the verdict rendered, except to make an order for a new trial ; but, after the new trial haa been had and a final verdict of the jury has been rendered, the decree accordingly must be made and entered by the Surrogate'.s Court. And, in no event, may any judgment, on the verdict of the jury, be entered by the court TY-herein the jury trial was had. (Hatter of Luudy, 35 App. Div. 542, 55 .S^Hpp. 98; Matter of Murphy, 79 App. Div. 541, 81 Supp. 102; Blatter of Cainphell, 48 Hun 417, 1 Supp. 231, 16 St. Rep. 483; Matter of Hattcii, 22 Ahh. X. V. m.) Section 403. — Review of Jury Trial : Motion for New Trial. The surrogate iw authorized to " make an order directing the trial by jury, at a trial term of the Supreme Court to be held within the county, or in the County Court of the county, of any controverted question of fact arising in a special pro- ceeding for the disposition of the real property of a decedent" for the payment of his debls. " The order must state dis- tinctly and plainly each question of fact to be tried, and it is the only authority needed for the trial." (§ 2547.) Section 2548 requires the verdict of the juiy to be certified to the Surro- gate's Court by the clerk of the court in which the trial was had; and it also provides for a new trial: § 2548. Review. — A trial by jury pursuant to an order made in a proceeding for tlie dispositioa of the real property of a decedent, made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at a trial term of the Supreme Court by the Supreme Court, in a case where a new trial of specific questions of fact, tried by a jury pursuant to an order for such trial, made in an action, would be granted. The verdict of the Jury must be certified to the surrogate's court by the clerk of the court In which the trial took place. - (1895 ch. 946:) The 'Code provisions regulating a new trial in such a case, '■ in an action," are found in section 1003 and incidentally in section 999. The latter section authorizes a motion for a new trial upon the judge's iniiintes. at the same term at which the verdict is rendered. Section 1003 applies these provisions to a case where questions of fact are ordered to be tried before a jury, and also provides that a new trial may be gi^anted as to some of the questions so tried and refused as to others; Ch. 13, § 403. APPEALS. 485 Review of Jury Trial ; Motion for New Trial. and that evrors committed during the trial may be disregarded where substantial justice does not require a new trial. And it closes with this sentence: Where the .judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions, talton at the trial, to be heard at a term of the Appellate Division of the Supreme Coui-t, a motion for a new trial can be made oiili/ at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires. (§ 1003.) Thus i t is clear that when, in a proceeding for the disposition of a decedent's real property, there has been a jury trial of questions of fact at a trial term of the Supreme Court, a mcf- tion for a new trial on the judge's minutes may be made before the trial judge at the same term where the verdict is ren- dered. {Matter of Laiicly, 14 App. Dir. wf, 43 Supp. 689; ' 2Iattei of Booth, 53 Hun 629, 24 St. Rep. 647.) But. under .section 1003, if the motion be not made at the trial term, it is difficult to see how it can be made at all in the Supreme Court; for the section provides that, in such event, " a motion for a new trial can be made onlij at tlie term where the motion for a final judgment is made, or the remaining issues of fact are tried, as the case requires." {Ghapin v. Thompson, 80 jV. Y. 275.) In the case under con.^aderation, there is no such term in the Supreme Court, because " the verdict of the jury must be certified to the Surrogate's Court by the clerk of the court in which the trial took place " ( §.. 2548) ; and the motion for a final decree is made in that court and there the remaining issues of fact, if any, are tried. So it seems that the. provis- ions of section 25.4 8, expressly empowering the surrogate to grant a new trial after a jury trial in this special proceeding, were intended to harmonize the practice here with the practice in an action, as outlined in section 1003, by authorizing such a motion to be made in the Surrogate's Court, when " the motion for a final decree is made or the remaining issues of fact are ti'ied," if no motion for such a new trial has already been made before the trial court. But section g548 provides that a new trial may be granted by the court in which the trial took place " or, if it took place at a trial term of the Supreme Court, hy the Supreme Court " ; and it may be that this provision authorizes the motion to be made at Special Term also, notwithstanding the restrictive PART I : GENERAL PROCEDURE. Ch. 13, § 404, Same Subject: In Probate Case. provisions of section 100,3. It lia.s been so assumed in many cases; but in none of Uwmi waw Uie qncstion fairly before the court. In 2Ialicr of Chnk, {^ : tliu! -j'^:]) it wa.s held that the rractice of making the '' niotiou fi-i- r. ncv; trial at a Special Term, instead of the General Tvn;i, is correct ''; but the conten- tion before the convt \vi\y. that ij.e liuuiou .sliould be made at General Term in the first iiuUuiU':', and the power of the Special Term to entertain tlie motion v.as assumed. However, the careful i.iactitioiier will make Iht motion at the trial term upon the jiidfjc's miniitci:, as this practice is correct. The Code has this special provision foi an appeal from the order on such a motion: **>!«»W*fe.*'3*«>- :l § 2.j4n. Appeal feo.\[ Ohder Theebupon. — An appeal may be taken from an order, made upon a motion Tiii- a new trial, as prescribed in the last section, as ij: the order liad been made in an action, and with lilse effect. Costs of such au appeal ma,y be awarded b.v the appellate court, as if the appeal was from an order or decree of the Surrogatc-'s Court. (1880 cli. 178.) ^ Section 404. — Same Subject : In Probate Case. Where, after the reveiwal id modification of a decree in a prohate case, there ha.w been a jtii.v trial the only statutory provision authorizing a review of it will be found in this sen- tence of section 2.jSS : " A]tvr the tiial, a iirir trial may de granted as prescriLed in sccfioii' 2518 of this act." fSection 25-iS provides that the trial hj ,iury"*'thereiu referred to " can be reviewed, in the first instance, oulij upon a motion for a new trial," and also that A new trial ma.v be granted by the kuiioikiIc or the court in which the trial took place, or, if it took place at a trial term, of the Supreme Court by the Supreme Court, in a case where a new trial of specific questions of fact, tried b.v a jury pursuant to an OTder for sncli trial, made in an action, would be''' granted. (See see. 403 ante.) ^.„_-.,-,^..M«.ain»»»--- ''-•'' " As we have seen already ( sec. ^^03, ante) when a jury trial has been had in a prohate case the trial court has no authority to entej- or direct any judgment, but the verdict must be certi- fied to the Surrogate's Court by the clerk of the trial court {flatter of Laiidy, 35 .1pp. Dir. 512, 55 Biipp. OS; Matter of Murphy, 79 App. Div. 541, 81 Hupp. 102; Matter of Camphell, 48 Hun 417, 1 Sapp. 231, 16 >!t. Rep. 483; Matter of Hatten, 22 Ahh. X. C. CO) ; and thus, as it seems, the practice upon a motion for a new trial in a probate case, after a jury trial, is Ch. 13, § 405. APPEALS. 437 Disregarding Errors on Motion for New Trial. precisely the same as where a Jniy trial has been ordered by the surrogate, under section 2547, in a special proceeding for the disposition of a decedent's leal property for payment of his debts. Where the jury trial has been had at a trial term of the Supreme Court it may be, as we have suggested already (sec. 403 ante), that the motion for a new trial may be made at Special Term also ; but, inasmuch as this is debatable, the mo- tion should be made at the trial tcnn upon thf jiuU/r's minutes thereby avoiding all questionable practice. In 1892 it was held in Matter of Patterson (63 Eun 529, 18 Sup p. 499, 44 Ht. Rep. 842) that the surrogate has no power to grant a new trial after a jury trial in a probate case. This decision, however, contravenes the statute, and the reasoning by which it was reached has been nvJlified by the amendment ( 189.5 ch. 946) to section 2.5S5 ^rhich now provides for the transmission of the record upon appeal from the appellate court to the Surrogate's Court, and recpiires that court to " enter the judgment or order necessary to cai-iy the deter- mination of the Appellate Division into effect." After the verdict of a jury has been certified by the trial court into the Surrogate's Court, without a motion for a new trial having been made, it is difficult to pelcei^'e how any court other than the Surrogate's Court can have jurisdiction to entertain such a motion; and, by the provision authorizing the surrogate to grant a new trial, the practice is assimilated to that in an action, as prescribed by section 1003. For it is in the Surro- gate's Court only that the final decree is rendered in the pro- bate proceeding. But, as the jiower of the surrogate to enter- tain a motion for a new trial in such a case has not been passed upon by any appellate court since that obsolete Patterson case, the motion should be made at the trial term upon the judge's minutes. Section 405. — Disregarding Errors on Motion for New Trial. Where a jury trial has been had, a new trial may be granted " in a case where a new trial of specific questions of fact, tried by a jury pursuant to an order for such trial, made in an action, would be granted." (^y!!!s^\£ 2588.) This reference 428 PART I : GENERAL PROCEDURE. Oh. 13, § 406. Motion on Judge's Minutes : How Made. is to sectiou 1003 regulating the review of a " trial, by a jury, of one or more specific questions of fact, arising upon the issues, in an action triable by the court " ; and section 1003 provides, among other things, that A new trial may be granted, as to some of t>e Qiiesf o:'.':, so iVLd, aud refused as to the others; ?.nd an crrm-, in the admission or exclusion of evidence, or in any other ruling or direction of the juiige. upon the trial, ra.iy, in the discretion of the court which reviews it. lie dis-regarded, if that court Is Of opinion, that SLihsLantial justice does not require that a new trial should be granted. This section relates to actions in equity where issues of fact have been tried by a jury (Glcasou v. Hamilton, G4 Sun 96, 19 ^upp. 103, 45 m. Rep. 491, aff'd 138 .V. Y. 353) ; and in such an action the court looks into the vdiole case to ."-ee whether sub- stantial justice has been done, and, where that appears, it may ignore errors which in an action at law might require a new trial. [Clmrch v. Kidd, 3 Hun 254.) Indeed a new trial ordinarily will not be granted for errors in the admission or exclusion of testimony if the case has bsen i-ightly decided upon suflQcient and competent evidence. {Evans v. Simd, 82 Him 396, 31 Supp. 259,-63 St. Rep. 565, aff'd 152 X. Y. 622.) An application for a new trial of questions submitted to a jury by a court of equity is governed by principles different from those which prevail on similar applications in a court of law. The object of the trial is attained when the court is satisfied that justice lias been done; and in such case a new trial will not be granted, even for misdirection of the jury, unless the error is important. {Post v. Mason, 91 A^. Y. 539; Van Epp.s v. Harnes, 88 Hun 229, 34 Supp. 33T, 68 St. Rep. 261.) The rule is substantially the same a^ npon an appeal from a decree, rendered upon a trial before the surrogate, which " shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby." (§ 2545; Loder v. Whelpley, 111 xA\ Y. 239; Matter of Miner, 146 X. Y. 121; Matter of Crane, 68 App. Djv..355, 74 Supp. 88.) Section 4o6.~Motion on Judge!^s Mintites : How Made. " It is not necessary to make a case, for the purpose of moving for a new trial, upon the minutes of the judge, who presided at a trial by a jury" (§ 998) ; but the judge "m^, Oh. 13, § 407. APPEALS. 429 Motion on Minutes : If Not Entertained by Trial Judge. in his discretion, entei'tain a motion, made upon his minutes, at the same term, to set aside the verdict, and grant a new trial upon exceptions or because the verdict is contrary to the evidence or contrary to law." (§ 999.) A motion on the judge's minutes must be made at the time of the trial {Harris v. Gregg, 4 App. Div. 615, 38 Supp. 844) ; but written notice of it is not required. It may be brought on immediately after the verdict has been rendered, and it must be based upon a ground mentioned in section 999 and be heard on the minutes only; and the order entered thereou should state the grounds upon which the motion was made. {Pharis v. Gere, 107 N. Y. 231; Rule 31.) i^lthough a case is not required for the purpose of a motfon for a new trial upon the judge's minutes, yet, " if an appeal is taken from the order made upon the motion, it must be heard upon a case prepared and settled in the usual manner." (§ 999.) Section 407. — Motion on Minutes : If Not Entertained by Trial Judge. Where after a jury trial in an aetion a motion for a new trial is made upon the judge's minutes, at the same term where the trial was had, the judge may decline to entertain it and may direct it to be heard at a Special Term on a case and exceptions (Magnus v. Buffalo Ry. Co., 24 App. Div. 449, 48 ^upp. 490) ; or, upon the application of a party who has taken one or more exceptions, he may, in his discretion, at any time during the term, direct an order to be entered that the excep- tions taken upon the trial " be heard in the first instance by the Appellate Division of the Supreme Court, and that judg- ment be suspended in the meantime." (§ 1000.) Probably the same procedure may be resorted to after a jury trial in a special proceeding in the Surrogate's Court, although there seems to be no express statutory warrant for it; and it was adopted in Matter of Murphy (79 App. Div. 541,- 81 Swpp. 102) where an order of the surrogate, made pending a review of such exceptions, was reversed. 430 PART I : GENERAL PROCEDURE. Ch. 13, §§ 408, 409. Appeal Oi'autiug e i ' Rcf uoing New Trial Motion for New Trial. y Section 408 — Appeal from Order Granting or Refusing ITew Trial. An appeal may be taken to the Appellate Division from an order made upon a motion for a new trial whether it grants or refuses the application. (§§ 999, 1347 & 2549.) Indeed, although the Appellate Division has wide latitude in review- ing cases upon the facts, it cannot do so after a jury trial unless an order has been entered denying a motion for a new trial and an appeal is taken from the order. Xo exception lies to a denial of the motion ; but an order must be entered, and an appeal from it be taken, so as to enable the Appellate Division to review or reverse upon the facts. (Collier v. Col- lins, 172 2V. Y. 99.) For the appeal, a case must be prepared and settled in the usual manner. (§ -999.) ^' Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the Sur- rogate's Court." (§ 2549.) Section 409. — Motion for New Trial in New York County. Each of the twg„^rrogates of New York county is author- ized by sectioiif2547|^to make an order transferring to the Supreme Court any special proceeding for the prolate of a will pending before him, or in the court over which he pre- •sides, and thereupon the issues of fact must be tried in the Supreme Court ; and the order of transfer is the only authog^ nee ded for such a trial. It is further provided in sectioi^' 254^^ Such issues of fact shall be tried by Jury, and the verdict can be reviewed only by a motion for a new trial upon 'the minutes of the judge. Such motion must be made within ten days after the verdict is rendered. A new trial may be granted upon exceptions, or because the verdict was rendered upon insufiScient evidence or is against the evidence or the weight of evidence. An appeal lies to the Appellate Division of the Supreme Court from the order granting or refusing a new trial. An appeal must be taken by serving written notice of appeal upon the clerk of the court, and upon the attorney for the respondent, within ten days after the service upon the attorney for the appel- lant of the order appealed from, and of written notice of the entry thereof. The appeal shall be heard upon a case containing all the evidence ; and an error in the admission or exclusion of evidence, or In any o'ther ruling or direc- tion of the Judge upon the trial may, in the discretion of the court, be dis- regarded if substantial justice does not require that there should be a new trial. If a motion to set aside the verdict be not ma"de, or If at the termination of the proceedings for its review, the verdict is sustained, the Supreme Court shall certify to the Surrogate's Court the verdict, which shall he final and con- clusive upon the parties to the litigation and their privies. Thereafter all jtroceedings relating to the will and to the estate of the Ch. 13, §§ 410, 411. APPEALS. 431 Costs of Appeal — Same Subject: On Jury Trial in Probate Case. decedent shall be had in the Surrogate's Court. The original will shall be returned to the Surrogate's Court at the time the verdict is certified thereto. The costs shall be taxed in the Surrogate's Court, and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by ■ the surrogate. (See sec. 279 ante.) A general procedure for the review of a jury trial is stated here so clearly that no one need err ther-ein ; and it is regrettable that these provisions do not apply generally to every special proceeding in the Surrogate's Court where issues of fact are sent to a jury for trial. Section 410. — Costs of Appeal. The appellate court may award to the successful party the costs of the appeal, or it may direct that they abide the event of a new trial or of the subsequent proceedings in the Surro- gate's Court ; and in either case they " may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court ; or, if such a direction is not given, as directed by the surrogate." (§ 2589; see sec. 296 ante.) This subject has been discussed already in chapter 11 of this Treatise {see sec. 296 ante) ; and further comment here is unnecessary except to remark that only the appellate court is authorized to award costs upon an appeal, and in no event can the Surrogate's Court do so. (Schell v. Hewitt, 1 Dem. 249, 4 Civ. Pro. Rep. 57; Matter of Hatten, 6 Dem. 444, 2 Supp. 493, 17 St. Rep. 774.) Section 411.— Same Subject : On Jury Trial in Probate Case, It is provided in section 2558 that when a question of fact has been tried by a jury the decree must award costs to the successful party except " where special directions, respecting the award of costs, are contained in a judgment or order, made upon an appeal from the surrogate's determination, or upon a motion for a new trial of questions of fact tried by a jury; in either of which cases, costs must be awarded accord- ing to those directions." It has been held by a learned surro> gate that this provision refers only to the jury trial which a surrogate may order with respect to a controverted question of fact in a proceeding for the disposition of a decedent's real property {Matter of Hatten, 6 Dem. 444, 2 Supp. 493, 17 Stt 433 — ' PART I : GENERAL PEOCEDUEE. Ch. 13, §§ 41S, 413. Same Sjjbject: Amount of Costs— Appeals to Court of Appeals. Rep. 774) ; but this construction seems arbitrary and not war- ranted by the section. If the appellate court, in a^rarding a jury trial in a prolate cas2, also gives directions as to costs those directions control; but, in the abs:ence of " special directions, respecting the award of costs, contained in a judgment or order, made upon an ap- peal from the surrogate's determination," the successful party upon the jury trial is entitled to costs of the trial by virtue of the statute. (§ 2558 siih. 2.) And if the jury trial has been had pursuant to an order, made upon a motion for a new trial, any directions as to costs contained in such order are control- ling. (§ 2558; see sec. 282 ante.) Section 412. — Same Subject : Amount pf Costs. Where costs are awarded upon an appeal from an order or decree of the Surrogate's Court, or where a question of fact in a proceeding therein has been tried by a jury, they are to be taxed at the same rates as upon a similar appeal or trial in an action (§§ 2560 d 32-10; Cole v. Terpenning, 27 Hun 111, Walsh V. VaiiAllen, 36 Htm 629; Wadley v. Davis, 38 Htm 186) ; but no extra allowance can be granted under any cir- cumstances. [Matter of Holden, 126 JS\ T. 589; Matter of Simpson, 26 Hun 4Mi; see sees. 289-296 ante.) Section 413.— Appeals to Court of Appeals. An appeal to the Court of Appeals may be taken from an order of the Appellate Division which finally determines a special proceeding begun in the Surrogate's Court, and also from such an order wliitli grants a new trial on exceptions " where the appellants stipulate that upon affirmance, judg- nreut absolute shall be rendered against them" (§ 190) ; but no appeal lies directly from an order or decree of the Surro- gate's Court. The appeal must be from the order of the Appellate Division (Ldibey v. Mason, 112 jV. Y. 525) ; and it is not sufficient to appeal from a decree of the surrogate's Court and state in the notice of appeal that the appellant intends to bring up for review the order of the Appellate Division. (Matter of Union Trust Company, 172 N. Y. 494.) An order of the Appellate Division reversing, upon a questiora Oh. 13, § 413. APPEALS. 433 Appeals to Court of Appeals. of fact, a decree in a probate proceeding and directing a jury trial is neither a final order nor appealable (Sutton v. Ray, 72 N. Y. 482; Burger v. Burger, 111 N. Y. 523; Marvin v. Marvm, 4 Keyes 9, 3 Ahh. Ct. App. Dec. 192) ; but where a decree admitting a will tcT probate is reversed for error in law, an appeal lies to the Court of Appeals. {Talbot v. Talbot, 23 2V. Y. 17.) An appeal may be taken also " where the Appellate Division allows the same, and certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, in which case the appeal brings up for review the questions so certified, and no other." (§ 190.) However, the Court of Appeals cannot determine certified questions whose answers depend upon facts from which differ- ent inferences may be drawn (Matter of Westerfield, 163 W. Y. 209) ; and the answers to certified questions will be limited to those raised by the facts disclosed and cannot extend to ab- stract or contingent propositions. (Matter of Robinson, 16Q N. Y. 448.) The jurisdiction of the Court of Appeals is restricted to questions of law; and no unanimous decision of the Appellate Division that there is evidence supporting or tending to sus- tain a finding of fact can be reviewed by it. { § 191 ; City of Niagara Falls v. N. Y. C. d H. R. R. Co., 168 N. Y. 610.) Thus, the unanimous afiirmance of a Surrogate's Court decree, charg- ing trustees with improper investments, precludes the Court of Appeals from examining the evidence. (Matter of Hall, 164 N. Y. 196.) Where the Appellate Division has reversed a decree " upon the law and the facts," and the record discloses that a question of fact is involved, an appeal to the Court of Appeals will be dismissed (Matter of Thome, 162 N. Y. 238) ; but a reversal upon the law and the facts is reviewable as to the law if the facts are neither disputed nor open to different inferences (O'Brien v. East River Bridge Co., 161 N. Y. 539), or where the questions of law are not affected by any contro- verted fact. (Qrdjggs v. Day, 158 N. Y. 1; Erie R. R. Co. x. Steward, 170 N. Y. 172.) And where the Appellate Division has reversed a decree " upon the law and the facts," if the in- ferences from uncontradicted evidence all point in one direc- 484 PART I : GENERAL PROCEDURE. Ch. 13, § 414. Same Subject: Certain Orders not Reviewable. tion so that reasonable minds must reach the same conclusion, there is no question of fact; and the Court of Appeals has jurisdiction. {Matter of Totten, 179 N. Y. 112.) If an order of the Appellate Division reversing a decree, does not show that the reversal was upon a question of fact, it will be presumed that it was upon the law and that all the facts, warranted by the evidence and necessary to support the decree, were found by the surrogate { Matter of Barefield, 111 X. T. 387) ; and thersupon the ordei- of the Appellate Division may be reversed, and the decree of the surrogate afiSnued, if the record discloses no error of law. (Matter of Keefe, 164 xV. 7, 352.) An order of the Appellate Division aflflrming an order or decree of a Surrogate's Court settling an intermediate account of executors and awarding commissions, in a special proceed- ing for that purpose, is an order finally determining the pro- ceeding and appealable as of right to the Court of Appeals (Stimson v. Vromau. 99 N. Y. 74; Matter of Prentice, 160 N. Y. 568) ; and so is an order reversing an order of the Surro- gate's Court which vacated a decree on a final accounting (Matter of Tilden, 98 N. Y. 434; Matter of Began, 167 N. Y. 388), and likewise an order reversing the order of the Surro- gate's Court and dismissing the petition of an attorney to establish his lien. (Matter of Fitzsimons, 174 N. Y. 15.) Section 414. — Same Subject : Certain Orders not Reviewable. An order of the Appellate Division, reviewing a discretion- ary order of the Surrogate's Court, is not appealable to the Court of Appeals (Matter of Baldwin, 158 lY. Y. 713) ; nor has' it any power to review the discretion of the Appellate Division in determining, upon a modification of a decree, whether the appellant shall be allowed costs in the Surrogate's Court. (Matter of Denton, 137 N. Y. 428.) So it has been held that an order of the Surrogate's Court removing an exec- utor, administrator or testamentary trustee, upon any of the statutory grounds, rests in the discretion of that court and so is reviewable by the Appellate Division but not by the Court of Appeals (Mutter of McGillivray, 138 F. Y. 308) ; and like- Wise that the issuing of letters of temporary administration is Oh. 13, § 414. APPEALS. 435 Same Subject: Certain Orders not Reviewable. a discretionary mattei-, and not subject to review by the Court of Appeals, even though the surrogate's refusal to appoint a temporary administrator be put on the ground of his having erroneously Issued letters testamentary to an executor. {Mc- Gregor V. Buel, 24 N. Y. 166.) It has been held that each of the following orders is not appealable to the Court of Appeals, viz: — Ah order reversing an order which denies an application to compel an executor to account for unadministered assets {Matter of Latz, 110 N. Y. 661) ; an order affirming an order denying an application to open a decree {Matter of Small, 158 Y. Y. 128) ; an order affirming an order directing an executor to make and file an account {Matter of Estate of Halsey, 93 i\". Y. 48; Matter of Callahan, 139 Is. Y. 51) ; an order affirming an order denying an application to intervene made by one having no direct inter- est in the estate {Matter of Estate of Halsey, 93 N. Y. 48) ; an order affirming an order refusing leave to discontinue an accounting {Tompldns v. Soulice, 4 Ahb. Ct. of App. Dec. 421) ; and also an order reversing an order awarding costs, unless based upon a supposed want of power. {Noyes v. Chil- dren's Aid Society, 70 N. Y. 481.) Where a decree probating a will has been reversed on the facts and a new trial of the questions of fact has been awarded by the Appellate Division, its order is not reviewable by the Court of Appeals {.Matter of Will of Budlong, 126 N. Y. 423), nor is its order, affirming an order of the Surrogate's Court opening a decree for fraud, reviewable on the facts {Matter of Flynn, 136 ^'. Y. 287) ; but an orde^r, affirming upon the facts a decree probating a will, may be reversed by the Court of Appeals for errors of law, {e. g. Matter of Hopkins, 172 2V. Y. 360) , and thereupon, as it seems, that court will make an order directing a jury trial of any material questions of fact in the case. {Matter of Hopkins, 176 F. Y. 595; see sec. 398 ante.) An appeal from the affirmance of a surrogate's decree brings up nothing for review on behalf of a party who has neither appealed to the Appellate Division nor excepted to the find- ings of the surrogate {Matter of Kellogg, 104 N. Y. 648, 1 Silvernail Ct. of App. 313) ; and a failure of the surrogate to make findings is no ground for an appeal where no exceptions 436 PART I : GENERAL PROCEDURE. Ch. 13, § 415. Proceedings on Remittitur from Court of Appeals. to his decision have been taken. {Matter of Eoocl, 104 2V. Y. 103; Matter of Spragiie, 125 N. Y. 732.) Section 415 — Proceedings on Remittitur from Court of Appeals. As hereinbefore noticed, an appeal to the Appellate Division takes the proceeding out of the Surrogate's Court and into the Supreme Court; and when the appeal has been heard, the whole record, together with a certified copy of the order of the Appellate Division annexed, is returned to the Surrogate's Court. {See sec. 399 ante.) However, no appeal lies to the Court of Appeals from any order or decree of the Surrogate's Court, but only from the order of the Appellate Division aflBlrming, reversing or modifying the order or decree of the Surrogate's Court. Such an appeal takes the proceeding out of the Surrogate's Court again, and into the- Court of Appeals; and, when it has been disposed of there, the order or judg- ment of the Court of Appeals, together with the original record, constitutes its remittitur to the Surrogate's.- Court. The prac- tice is illustrated in iMattcr of Hopkins (172 T. Y. 360, 370) where the Court of Appeals, as appears by its remittitur {see s. c, 41 Misc. 83, 86, 83 Supp. 890, 892), ordered and adjudged : " That the order of the Appellate Division of the Supreme Court appealed from herein and the decree of the suBTogate be, and the same hereby are reversed and proceedings remitted to Westchester County for trial before a jury in the Supreme Court to determine whether the will in question was revoked by tes- tator " ; and that the record be remitted " into the Surrogate's Court of Westchester County before the sur- rogate thereof according to the form of the statute in such case made and provided, to be enforced according to law, and which record now remains in the said Sm-- rogate's -Court of Westchester County before the Sur- rogate thereof," etc. And when the Court of Appeals has sent down its remitti- tur an order must be entered by the surrogate making the order or judgment of the Court of Appeals the order or judg- ment of the Surrogate's Court. (§ 194; see Matter of Hop- kins, 41 Misc. 83, 86, 83 Siipp. 890, 892, aff'd 95 App. Div. 57, 87 Supp. 793.) The practice in this particular seems to be pre- Ch. 13, § 416. APPEALS. 437 Enforcement of Decree or Order Appealed from : Restitution. cisely the same as upon a remittitur from the Appellate Divi- sion. {See sees. 399-401 ante.) Section 416.- Enforcement of Decree or Order Appealed from: Restitution. It is provided in section 2587 : Tile decree or order appealed from may be enforced, or restitution may be awarded, as the ease requires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a judgment. (See sec. 3B7 ante.) The reference is to sections 1319-1323. § 1319. Mode of Exfoecino Affirmed or Modified .Iudgment. — Where a judgment, from which an appeal has been taken, from one court to another, is wholl.y or partly affirmed, or is modified, upon the appeal, it must be en- forced, by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken. (1876 ch. 448.) § 1320. Id. ; AS to Oedeh. — Where a final order, from which an appeal has been taken, from one court to another, as prescribed in title fifth of this chapter, is wholly or partly affirmed, or is modified, upon the appeal, the appellate court may enforce its order, or may direct the proceedings to be i-emitted, for that purpose, to the court below, or to the judge who made the order appealed from. (1876 ch. 448.) In case a decree directing the payment of money, has been docketed as authorized by section 2553, and thereafter is reversed or modified upon appeal, the docket may be canceled or modified accordingly, as provided by sections 1321 and 1322; but where such a decree, or one directing a disposition of property other thap money, has been executed wholly or in part, but is afterwards so reversed or modified, restitution may be awarded as provided in the following section : § 1323. Restitution, when Awarded. — When a final judgment or order Is reversed or modified, upon appeal, the appellate cojjrt, or the General Term of the same court, as the case may be, may make or compel restitution of prop- erty, or of a right, lost by means of the erroneous judgment or order ; but not so as to affect the title of a purchaser in good faith and for value. Wlien property has been sold, the court may compel the value, or the purchase price, to be restored, or deposited to abide the event of the action, as justice requires. When the appeal is from a judgment in favor of the owner of real estate, in an action to set aside a conveyance thereof, or in an action to compel the specific performance of a contract for the sale 1 hereof, such owner shall have the same right to sell or dispose of the same as though no appeal had been taken ; unless the appellant shall file with the clerk of the court a written undertaking, in a sum fixed by tho court, or a judge thereof, upon a notice to the respondent of at least ten days, and to be approved by such court or judge, to the effect that the appellant will, in case the judgment appealed from shall be affinned, pay to such owner such damages as he may suiter by reason of such appeal, not exceeding the amount of the penalty in such undertaking. Such undertaking may be filed at any time during the appeal, but any sale of such real estate or contract to sell the same in good faith and for a valuable consideration, after said judgment and before tho filing of such undertaking, shall be as valid as if such undertaking had not b(Hin filed. In case such undertaking shall not be filed, the respondent shall be entitled, at any time during such appeal, to an order discharging of record any notice of pendency of action filed In the action, and, in an action to compel the specific performance of. a contract for the sale of real estate, also canceling and discharging of record said contract, In case the same has been recorded. (1899 ch. 650.)