245 A.D. 252 | N.Y. App. Div. | 1935
When this matter was first before us this court reversed the decree appealed from and remitted the matter to the surrogate for further proceedings in accordance with the opinion which is found in 243 Appellate Division, 235.
Through an inadvertence the fact was overlooked that the original Rome Hospital, trustee under the will of this testatrix, had abandoned its appeal and had stipulated itself out of the case. Such stipulation was filed with the clerk of this court at the time the appeal was first argued. That stipulation having been called to our attention, an order has now been made dismissing the appeal of the said Rome Hospital.
Before determining the main question, whether or not the disappearance of the Rome Hospital, as an appellant herein, should work a change in our former decision, we must deal with a question of practice. Respondent now claims that there are no questions, even of law, properly before us for review, for the reason that appellants did not file exceptions to the surrogate’s findings. This point was not raised in respondent’s brief or argument when the appeal was first before us, and ought not to be raised for the first time upon reargument after the court has been to the pains of passing upon all questions raised. (Groonstad v. Robins Dry Dock & Repair Co., 203 App. Div. 33.)
Furthermore, it is doubtful if the point is well taken anyway. Sections 71, 72 and 294 of the Surrogate’s Court Act provide for filing exceptions in Surrogate’s Court the same as in Supreme Court, and the practice in Supreme Court is laid down in sections 444 and 445 of the Civil Practice Act. By referring to the last mentioned sections we find that they require exceptions to be filed “ to the ruling of the court or of a referee, upon a question of law, arising upon the trial of an issue of fact.” (See Matter of Findlay, 253 N. Y. 1, at pp. 14, 15, 16.)
There was no issue of fact in the instant case. To be sure some evidence was taken on some formal matters, but there was no answer to the petition, which merely asked for a construction of certain paragraphs of the will, and there was not an issue of fact in the case.
All concur. Present — Sears, P. J., Taylor, Edgcomb, Crosby and Lewis, JJ.
On reargument, decree reversed on the law and matter remitted to the Surrogate’s Court for further proceedings in accordance with the opinion filed on the original decision of this appeal and the opinion filed herewith, without costs.