55 N.Y.S. 98 | N.Y. App. Div. | 1898
This proceeding came into this court by appeal from a decree of the surrogate, which was affirmed, and the papers transmitted to the clerk of the Surrogate’s Court, pursuant to the directions of the statute contained in section 2585 of the Code of Civil Procedure. But it seems that, before entry of the decree of the surrogate, the Supreme Court made a judgment directing the surrogate to enter the decree. The appeal to this court was taken not only from the decree of the surrogate, but from the judgment of the Supreme Court, and, by an order of this court, both were affirmed.
It is claimed by the appellant that the appeal which he proposes to take should be from the judgment of the Supreme Court, and he desires the papers to be transmitted to that court, in order that a judgment of affirmance may there be entered. This presents the question whether the practice pursued in this proceeding has been proper.
Probate of the will of Kate L. Laudy was denied by the surrogate in ^November, 1893. From the decree of the surrogate deny
The proceeding originally came into this court upon an appeal from the decree of the surrogate. The statute requires that when .such a decree is reversed upon the facts, the appellate court must make an order directing the trial by a jury of the material questions of fact arising upon the issues. This trial may be directed to be had, either at a Trial Term of the Supreme Court or in the County Court of the county of the surrogate, if there is such a tribunal. (Code Civ. Proc. § 2588.) The further proceedings, after the trial of the issues of fact has been ordered by the Appellate Division, are not specially prescribed in the Code, the only direction in that regard being that a new trial may be granted after the trial of the issues of fact as prescribed in section 2548 of the Code. Section 2548 prescribes the procedure in a case where the trial of an issue of fact pending in the Surrogate’s Court is ordered by the surrogate. That section directs that the verdict of the jury upon that trial
It is quite true that the judgment of the Supreme Court in this matter was affirmed, but the question of practice was not presented upon the appeal. Had it been, another disposition might possibly have been made of it. If an appeal had been taken from the judgment of the Supreme Court and the question of regularity had been made, there is authority for saying that the practice was irregular, and the judgment would have been reversed. (Matter of Campbell, 48 Hun, 417.) It is held in that case that it is not proper practice, where the issues of fact have been tried in the Supreme Court, to enter there a judgment instructing the surrogate what decree to enter. In that conclusion we concur. All the proceedings in the Supreme Court must be regarded as taken upon the appeal from the decree of the surrogate; and when the verdict has been rendered and the proceedings by which it has been reached have been finally determined, whether that be in the Trial Term or upon an appeal to this court from an order denying a new trial, the papers are to be remitted to the surrogate in pursuance of section 2585, in order that his decree may be entered. Ho judgment of any other court is proper. For this reason it would not be proper to withdraw these papers from the Surrogate’s Court, and this motion must be denied.
Present — Yak Brunt, P. J., Barrett, Patterson, Ingraham and McLaughlin, JJ.
Motion denied.