129 Misc. 541 | N.Y. Sur. Ct. | 1927
The petitioner, a son of the decedent, applies for an order vacating a decree of probate and revoking letters testamentary issued thereupon.
It appears that when the will was offered for probate, the petitioner appeared by an attorney, filed objections and demanded a jury trial. An order was made settling the controverted questions
The petition on this application, verified the 31st day of January, 1927, states that the petitioner did not know of the withdrawal of the objections, and understood that the matter of the probate of the wifi of his mother was still in litigation. In his affidavit in reply, however, it appears that he was in court on the 21st day of June, 1926, and that in the summer of 1926 he learned that his objections had been withdrawn upon the payment of $100. It would appear, therefore, that at that time he was fully advised as to the situation. The motion papers in this matter were not served until March 1, 1927, so that for a period of over five months after he knew what had occurred this petitioner began no proceeding to assert his rights or to advise the court of the acts of his attorney, now alleged by him to have been performed without his consent or approval. In the meantime, this estate has been in process of administration.
If this delay, under the circumstances stated in the papers, did not constitute laches fatal to this application, it at least makes it necessary that the court exercise great care before it vacates the decree and grants the other relief requested.
The power of the court to open, vacate, modify or set aside a decree is conferred by subdivision 6 of section 20 of the Surrogate’s Court Act. (Matter of Hermann, 178 App. Div. 182, 191; affd., 222 N. Y. 564; Matter of Tilden, 98 id. 434, 442; Matter of Hawley, 100 id. 206, 211.) It 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. (Matter of Tilden, supra; Matter of Henderson, 157 N. Y. 423, 427; Matter of Kranz, 41 Hun, 463; Matter of Peck, 131 App. Div. 81.)
The practice in the Supreme Court is that on an application to vacate a judgment, facts from which the court can satisfy itself that the party has a meritorious defense or cause of action must be shown. (Bandler v. Bandler, 187 N. Y. Supp. 358; Fitzgerald Manufacturing Co. v. Alexander, 200 App. Div. 164; Butterick Publishing Co. v. King, 15 id. 403; Matter of Paschal, 106 Misc. 214; Matter of Leslie, 175 App. Div. 108, 112; Matter of Beattie, N. Y. L. J. June 23, 1926.)
There are no facts set forth in the petition or in the replying
As the papers do not set forth facts sufficient to reasonably indicate that he would be successful if the relief asked were granted, this application will be denied with leave to renew. In order that as little delay as possible may result, the permission to renew the application is granted upon condition that such new application, if made, shall be commenced within twenty days after the service of a copy of the order entered hereon, and that notice thereof shall be given to the attorneys of all parties who appeared by attorney in the probate proceeding.
Settle order accordingly.