308 N.Y. 299 | NY | 1955
The sole residuary legatee under the last will and testament of Asher B. Hallock, deceased, appeals from an order of the Appellate Division, Second Department, unanimously reversing, on the law, a decree of the Surrogate’s Court of Suffolk County in a will construction proceeding. The Appellate Division, disagreeing with the Surrogate, construed the will as providing that the sum of $1,000, which decedent directed his executors and trustees to pay to his niece following the death of his wife, indefeasibly vested in the niece upon testator’s death. It remitted the proceeding “ to the Surrogate’s Court for the determination of allowances, costs and interest, and entry of decree ” (emphasis supplied).
Were the Appellate Division order final within the meaning of the Constitution, its order would be the appealable paper, notwithstanding the fact that it remitted the case to the Surrogate’s Court for entry of a decree (Civ. Prac. Act, § 591, subd. 2, as amd. by L. 1953, ch. 417). The rule was otherwise prior to said 1953 amendment (Matter of Mittelstaedt, 304 N. Y. 795; Matter of Bishop, 301 N. Y. 498).
In this case, however, further judicial action is contemplated by reason of the remission for the “ determination ” of “ interest ”. Remission for the determination of the costs and allowances would not affect finality, since the Surrogate in his decree expressly reserved these matters ‘ ‘ for supplemental decree ’ ’, in accordance with the authority granted by section 278 of the Surrogate’s Court Act. Remission for the purpose of determining interest, however, renders the Appellate Division order nonfinal.
Accordingly, the appeal should be dismissed upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution, with costs to respondent-petitioner payable out of the estate.
Conway, Ch. J., Desmond, Dye, Fttld, Van Voorhis and Burke, JJ., concur.
Appeal dismissed, etc.