United States v. Leary, 123 N.Y.S. 289

United States v. Leary

123 N.Y.S. 289 | N.Y. App. Div. | 1910

Miller, J.:

The United States of America having recovered a judgment against the appellant, petitioned the Surrogate’s Court of New York county for leave to issue execution. Thereupon the surro*858gate directed the appellant to file an intermediate account. Such account was filed and the United States filed objections thereto. Thereupon an order was made referring- the matter 'to a referee “ to inquire into the necessary jurisdictional facts, to examine said account and objections, to hear and determine all questions arising upon the settlement of said account, which the Surrogate' has power to determine, a,nd to make report to the Court with all convenient speed.” The referee made a report which did not separately state and number findings of fact and conclusions of law, but merely ruled on the various objections interposed by the respondent. The learned surrogate held that, notwithstanding the terms of the order, the reference was made ' solely for the purpose of informing the court and that in such case á decision containing findings of fact and conclusions of law was unnecessary. Ho doubt a reference might have been ordered solely for the purpose of informing the court, but the reference was in fact one to hear and determine .as provided by section 2546 of the Code of Civil Procedure.. Although the surrogate may confirm, modify or reject the report (Matter of Barefleld, 177 N. Y. 387) the report on such an order of reference as was made in this case should contain findings of' fact and conclusions of law. (Matter of Schroeder, No. 2, 113 App, Div. 221.)

In this case the appellant promptly moved. Ho one can be harmed by a report, containing .findings of fact a,nd conclusions of law separately stated and numbered. Without' it the appellant may be unable sharply to define the precise point which she may wish to present on appeal.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the. proceeding remitted to the surrogate to require a report to be made by the referee in accordance with the views herein expressed.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and proceeding remitted to surrogate as stated in opinion.