4 N.Y.S. 408 | N.Y. Sup. Ct. | 1889
The order denying the motion to dismiss the petition is clearly not appealable, as whether the surrogate should or should not, upon
In the case at bar a petition seeking the relief provided by section 2647 was presented within a year. It is true that such petition was defective in respect to some of the parties. But, under the general power which the surrogate has to amend proceedings, he had a right to allow the amendment of this petition, which was defective in some of its allegations. By the filing of the petition the surrogate had acquired jurisdiction of the proceeding, and the proceeding had been initiated precisely the same as by the service of a summons in an action upon an infant, the court acquires jurisdiction, and the procedings looking to the appointment of a guardian, which may be upon their face fatally defective, are the subject of amendment.
But it is claimed that by reason of section 2517 of the Code it is necessary, in order to prevent the statute of limitations finally attaching, that the citation issued should be served within 60 days after the presentation of the petition. An examination of this section, however, seems to show that it has no application whatever to the proceeding which was initiated by the presentation of
The authority of the surrogate, in a proceeding which has already been commenced to issue a supplemental citation, does not seem at all doubtful. By subdivision 2 of section 2481 the surrogate,'in court or out of court, has power, where all persons who are necessary parties have not been cited or notified, to issue a supplemental citation for the purpose of bringing in these parties. Under this provision of the Code, therefore, the surrogate had ample authority to issue the supplemental citation in question, for the purpose of bringing into the proceeding which had already been initiated those parties who were necessary to be in court before him, in order that there might be a complete adjudication upon the subject-matter presented. We are therefore of the opinion that the petition was filed in time to prevent the running of the statute, and that the surrogate had power to amend the petition, and to bring in those parties who liad not been previously named, and who were necessary parties for the complete determination of the subject-matter; and that it was a matter within the discretion of the surrogate, even if a proper case had been made out, whether or not to dismiss the petition upon the application of the adverse parties, and that they not having done so in no measure precludes him from disposing finally of the application upon the grounds presented upon this preliminary application to dismiss. The appeal from the order denying motion to dismiss the petition should be dismissed, and the orders amending the petition and directing the issuance of a supplemental citation should be affirmed, with $10"costs and disbursements. All concur.