49 A.D. 130 | N.Y. App. Div. | 1900
'The proceedings leading up to what should have been a hearing upon the merits of this case were characterized by several irregularities, arising largely from the failure to appoint a special guardian of the infants before any step was taken in the matter; but as these irregularities might have been corrected by motion before the surrogate it is not necessary to do more than suggest them at this time.
When the trustee had served his answer to the petition in which he raised material questions of fact, he was entitled to a trial in which common-law evidence should be given to sustain the allega
As the order is presented here it amounts simply to an order in a special proceeding, in which the court should have required the petitioner to make proof of his allegations before granting the relief demanded; and his failure to do so is clearly an irregularity which can be reviewed in this court, and calls for the reversal of this order and the sending of the matter back to the surrogate, where it may be tried in the manner prescribed in the statute.
The order appealed from should be reversed, with costs, and the proceeding remitted to the surrogate.
Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.
Order reversed, with costs, and proceeding remitted to the surrogate.