126 N.Y.S. 690 | N.Y. App. Div. | 1910
The decedent died on the 2d day of March, 1901, On December 16, 1901, a decree of the Surrogate’s Oojart was entered, refusing
This proceeding has been sent to the Trial Term of the Supreme Court merely for the trial of stated issues by a jury. When a verdict shall finally be rendered, if not set aside, it will have to be certified to the Surrogate’s Court for the entry of a decree granting or refusing probate as the case may require. ■ The Special Term of the Supreme Court had no jurisdiction over the proceeding and the, Trial -Term has jurisdiction only to try the questions as directed by this court, and upon the rendition of a verdict to pass upon a motion to set it aside, and ultimately to certify the result to the Surrogate’s Court. (Matter of Murphy, 79 App. Div. 541-544.) Said section 2588 of the Code of Civil Procedure provides: “Such an order” i. e., an order of the Appellate Division, reversing the surrogate’s decree “ must state distinctly and plainly the questions of fact to be tried, and must direct the trial to take place either at a Trial Term, of the 8uprem,e Court, specified in the order, or in the County Court of the county of the surrogate.” (Italics are mine.)
The learned counsel .for the respondent has failed to point out. any provision, of the statute conferring jurisdiction on- the Special Term of the Supreme' Court to dismiss such a proceeding. As well might .the Special Term dismiss it if no questions whatever had been sent to the Trial Term of the Supreme Court for trial by a jury.
It is claimed that the exercise of jurisdiction in this case is supported by the following decisions in this State : Heermans v. Hill (2 Hun, 409); Matter of Friedell (20 App. Div. 382); Matter of Lasak (131 N. Y. 624). \ In the first case it was held that the sur
The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Glarke, Scott and Dowling, JJ., concurred.
Order reversed, with ten- dollars costs and disbursements, and motion denied, with ten dollars costs.