| N.Y. App. Div. | Jun 15, 1931
Under the stipulation of the parties this was a discovery proceeding, and the Surrogate’s Court had jurisdiction to dispose of every claim to property involved in it. (Surr. Ct. Act, §§ 40, subd. 4, 205, 206; Matter of Akin, 248 N.Y. 202" date_filed="1928-05-08" court="NY" case_name="In Re the Estate of Akin">248 N. Y. 202, 206.) That court should have weighed the evidence and passed upon the controversy on the merits. It not having done so, we decline to consider the facts (Surr. Ct. Act, § 309), although the appeal is upon the facts as well as upon the law. Under section 309 of the Surrogate’s Court Act, it is at least doubtful whether under the circumstances we have power to determine the question involved. In any event, as matter of discretion, we decline to exercise such power. (See Matter of Kaupper, 141 A.D. 54" date_filed="1910-11-18" court="N.Y. App. Div." case_name="In re the Judicial Settlement of the Account of Kaupper">141 App. Div. 54, 57; affd., 201 N.Y. 534" date_filed="1911-02-24" court="NY" case_name="In Re the Accounting of Kaupper">201 N. Y. 534; West v. McCullough, 123 A.D. 846" date_filed="1908-01-24" court="N.Y. App. Div." case_name="West v. McCullough">123 App. Div. 846; affd., 194 N.Y. 518" date_filed="1909-01-05" court="NY" case_name="Scott v. . Spencer">194 N. Y. 518; Matter of Kane, 246 id. 498, 504; Matter of Blumenthal, 236 id. 448.) All concur. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ. Decrees reversed on the law and matter remitted to the Surrogate’s Court for further proceedings in accordance with the per curiam memorandum, with costs of this appeal to abide the final determination.