119 N.Y.S. 892 | N.Y. App. Div. | 1909
Appeal from an order of the Surrogate’s Court denying a motion to restore this proceeding to the calendar for trial, “ not, however, as a matter of discretion, Or in the exercise of discretion, but upon the sole ground that the said appeal from the said order bearing date and entered the 25th day of October, 1909, has, under the provisions of section 2584 of the Code of Civil Procedure, the effect
The trustees under, the will of Eebecca Ladew, deceased, filed ■their account in the .Surrogate’s Court. A special guardian was appointed of. one of the infant parties to the proceedings and filed exceptions. The surrogate, upon his own motion, sent tlié account to a referee who had some twelve hearings and took more than 400 pages of testimony. The referee did not file his report within sixty days after the matter was submitted, and the guardian served notice that he elected to end the reference. Subsequently the referee filed his report and the special guardian then made a motion to set the report aside upon the sole ground as indicated. The surrogate granted the motion, holding that section 1019 of the Code applied, to references in the Surrogated Court and stated;. “ The special guardian acted within his technical rights, and his application to declare the reference abandoned must be granted. I will make a new order of reference to the same referee on my own motion,” and there-, upon he did make such an order. The special guardian moved to vacate the second order of reference, and the motion was granted and an order entered. The surrogate then, upon his own motion, set this proceeding down for triál before him, and it was .placed- upon his trial calendar for trial before him, making a memorandum as follows: “ The parties having agreed that the evidence heretofore taken in the trial before the referee may be read so far as applicable on the new trial, the matter will • be tried before me and will be placed on my calendar of issues and set down for October 4th at 10 :30 a. m. to fix the date of hearing. , Formal notice of trial for that day may be served.” On October fourth, the special guardian being present and not opposing, it was. adjourned for trial until October twenty-fifth. Thereafter .the special guardian made a motion for an order appointing a referee. This motion was denied, and an order denying the sanie was made bearing date October 25, .1909, which,
On November'first, when this proceeding appeared upon the calendar it was marked off upon the application of the special guardian upon the ground that by the appeal taken by him from said order the trial had been stayed. Thereafter an order to show cause why this proceeding should not be restored to the trial calendar was made and came on for argument, and resulted in the order of November 8, 1909, first hereinbefore quoted, from which this appeal is taken.
Section 2581 of the Code of Civil Procedure provides: “Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the proceedings to enforce the decree or order appealed from, prescribed in section 1310 of this act, with respect to a perfected appeal from a judgment,”'
■ Section 1310 provides : “ * * * The appeal stays all proceedings to enforce the judgment or order appealed from, except that the court or judge from whose determination the appeal is taken may proceed in any matter included in ■ the action or special proceeding and not affected by the judgment or order appealed from or not embraced within the appeal.”
Section 2556 provides that “ A direction of a Surrogate’s Court made or entered in writing and not included in a decree is styled an order. It may be enforced in like manner as a similar order made by the Supreme Court in an action.”
Section 2568 provides: “ Any party aggrieved may appeal from a decree or an order of a Surrogate’s Court in a case prescribed in this article, except where the decree or order, of which he complains, was rendered or made upon his default.”
Section 2570 provides that “ An appeal to the Appellate Division of the Supreme Court may be taken from a decree of a Surrogate’s Court or from an order affecting a substantial right made by a surrogate, or by a Surrogate’s Court, in a special proceeding.”
•There is nothing to be enforced under the order appealed from. ' That order denied a motion for a reference and directed the case tó proceed before the court. It was a calendar order. If the appeal therefrom succeeds, all that will happen will be that the trial before the surrogate will stop and proceed before a new referee to be appointed. No harm can come to a litigant in a Surrogate’s Court from having his case tried before the surrogate instead of a. referee.
The conduct of the special guardian is evidently for purely dilatory purposes, and perhaps incidentally foiqcosts.. I-think his consent .in open court and appearance there when the matter was set down on the calendar for the purpose of fixing a date for trial, and the statement that he would make no objection to allowing the testimony of the former reference to be read,' was such a waiver as precluded him from making another motion for the appointment of a referee. Iiis course is condemned. There was no stay of the trial caused by the perfected appeal and the Surrogate’s Court had power to grant the motion which, for assumed, lack of power, it denied.
The order appealed from should be reversed, with ten dollars costs and disbursements out of -the estate, and the motion granted.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements payable out of the estate, and motion granted. Motion to dismiss appeal. denied.
