243 A.D. 560 | N.Y. App. Div. | 1934
Appeal from order of the Surrogate’s Court of Queens county, denying a vacatur of its decree entered June 15, 1932, dismissed, without costs. The order is entered on the motion of the appellant. It is not appealable. (Munson Realty Co., Inc., v. Melrose Bond & Mortgage Corp., 232 App. Div. 832.) The appellant should move to resettle the order appealed from so that it may be entered without the insertion of a provision that it is entered on his, the appellant’s, motion. At that time a reargument of the application might well be had, when the surrogate might consider the desirability of vacating the decree of June 15, 1932, and conducting a rehearing of the objections in furtherance of justice, to the end that it may be determined whether or not the general guardian should be surcharged the $1,395.61 which this court in Matter of Gier (240 App. Div. 859) concluded had been delivered by Stella Gier to Laura Ratke as general guardian. When the facts are developed it may be then determined whether Laura Ratke is responsible for the funds represented by the check which was indorsed in her name by Klingenbeek. It likewise may then be determined whether or not Kalb, the surety, should be required to respond in the event that Laura Ratke is responsible for this sum of money. The power to reopen the matter and the propriety of so doing is well settled in view of the unusual situation herein. (Matter of Shonts, 229 N. Y. 374, 382; Matter of Henderson, 157 id. 423.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.