1 Mills Surr. 62 | N.Y. Sur. Ct. | 1899
This case was tried before and submitted to Surrogate Arnold, but no decision thereon rendered by him before his retirement from office. Subsequently, in accordance with the procedure suggested by this court in the Matter of Lawrence (N. Y. Law Journal, March 15, 1899), due notice was given to all parties bringing said matter before me as the successor of Judge Abitold, oh a motion that I complete the trial herein as unfinished business pending before my predecessor in office. The object of such notice was merely to bring the matter before me in an orderly way for the continuance and completion of the proceedings, and to afford the parties an opportunity to submit additional testimony or to be heard, in accordance with the decisions cited in the opinion in the Lawrence case. Hpon the return day no suggestion of a desire to submit additional testimony was made, but the counsel for the contestants objected to the reception by me of the evidence previously taken before Surrogate Arnold, or to" any decision by me based thereon, and insisted that the case should be tried de novo, and asked to be heard upon such objection, which request was granted. The question has since been fully argued before me by learned counsel on both sides. I have already indicated in the opinion in the Lawrence case my own views upon the question, and I see no reason to change them despite the able and ingenious argument of the learned counsel for the contestants. The precise objection taken by him has been not only directly passed upon by this court (3 Red. 74; 4 Red. 286, etc.), but also by the Appellate Division of the Supreme Court, Fourth Department, as late as 1897, in the Matter of Carey, 24 App. Div. 531. The cases referred to would naturally be controlling upon me, even if my own opinion were not, as it is, in thorough accord with them. The principal contention of the contestants is that a judge who passes upon controverted questions of fact should have the advantage of seeing the witnesses and hearing them give their testimony,
Decreed accordingly.