The Surrogate.
It is objected, by the counsel for the executor, that this court has no power to grant the relief sought. If it has not, then, plainly, it should decline to act. Being a creature of the statute, *615having all its jurisdiction defined by it, an assumption to act beyond the prescribed limits cannot be justified. Where the statute confers a power without prescribing the mode of its exercise, it may follow the rules of the common law in its execution. So, it has. authority to exercise powers which are incidental and subordinate to the grant of the main power. Were it a court possessed of general jurisdiction, this difficulty would not be encountered. But as it is not, it becomes necessary to examine the statute, in order to ascertain whether it is clothed with any authority to act in reference to the matters involved in this proceeding.
The order directing the sale of the premises was made under the provisions of the statute as they existed before the taking effect of the present Code, but the sale was made since. Nevertheless, those statutes are applicable. I may, however, assume, in the consideration of the matter, as most favorable to the petitioner, that the sale and subsequent proceedings are *616governed by the present law, although there can be discovered no material difference between the latter and the former, in so far as the question here involved is concerned.
Ho provision is found in those statutes, or in title 5 of the 18th chapter of the Code, which recognizes the purchaser of the premises as a party, at any stage of the proceeding, or under any circumstances. Here, after the sale was made by the executor, he filed his report thereof, and subsequently an order was duly made confirming the same, .and directing the conveyance. By § 2775, notice of application for the order confirming the sale is required to be given only “to each party who has appeared.” Section 2776 prescribes that “an order, confirming a sale, must direct the person making the sale to execute the proper conveyances, upon compliance, on the part of the purchaser, or purchasers, with the terms of sale.” A duty is thus imposed upon the person making the sale, the proper performance of which *617may be enforced, on the application of any party to the proceeding, but it imposes no obligation whatever upon the purchaser. If he refuses to comply with the terms of sale, he cannot be coerced by this court, to which he is in nowise subject, to do so (see Butler v„ Emmett, 8 Paige, 18).
The only courses open to the person making the sale, in such an event, would be either to abandon it and cause a resale, or to bring an action in a court of general jurisdiction to compel a specific performance of the contract. On the other hand, if the executor, or other person making such sale, were contumacious, and refused to convey as ordered, he could, on the application of any party, be punished for disobedience; or the purchaser could bring his action in the proper forum to enforce like performance of the bargain, and to recover his damages for the breach thereof. To entertain this proceeding would be to establish the principle that a stranger may sueLan executor in this court to recover *618such, damages ; and also, that the executor might prosecute such stranger here for the same purpose. This is not the proper arena for such struggles. The power to hear and determine such controversies is nowhere conferred upon Surrogates’ courts. To illustrate the fallacy of the proposition that it is, let ns take the instance of the sale of a horse or other chattel by the executor or administrator in the due course of administration, the conditions of which are that the purchaser shall pay down a certain percentage, and the residue at some future period, when it shall "be delivered to him. He pays the percentage, but at the time fixed for delivery, having in the meantime, • as he thinks, discovered some good reason why he should not consummate the bargain, he declines to do so. "Would it not be absurd to suppose that either could maintain a proceeding in this court to recover damages against the other, or otherwise seek here a remedy for an alleged wrong % In this court, executors and administrators are amen*619able for their acts to persons interested in the estates they represent, and. not to strangers.
The order sought could not be made under the 5th subdivision of § 2481 of the Code, because the duty to refund the money, etc., is not imposed upon the executor by statute, nor by this court under authority of any statute; nor under subdivision 11 of the same section, because, as I have endeavored to show, I do not consider this matter as subject to the cognizance of this court. If it were, then following the course and practice of a court having, by the common law, jurisdiction of such matters, the issue would have to be tried by a jury, unless it were waived, or a reference ordered (Code, §§ 968, 969, 970).
The doctrine of, and statute relating to, the intervention of jDarties (Redf. Surr. Pr.; and Code, § 8617) have no application here. The petitioner is not a person interested in the estate of the testator. If he were, he *620has made no application on the subject, so that the question is not before me.
Counsel for petitioner refers me to the Matter of Dolan (26 Hun, 46 ; s. c., on appeal, 88 N.Y., 309" court="NY" date_filed="1882-03-14" href="https://app.midpage.ai/document/in-matter-of-application-etc-of-dolan-3629305?utm_source=webapp" opinion_id="3629305">88 N. Y., 309) as authority to sustain his view that this court has jurisdiction to entertain this application, and quotes from the decision of Surrogate Calvin, in his return in that case, in which he expresses the opinion that he had “ complete jurisdiction over the matter.” I have not been furnished with a copy of the opinion of my learned brother, (which is unreported) and must, therefore, determine this question without the benefit of the light thrown upon it by his discussion of it, but if I had, I fear I should have been compelled to differfrom him for the reasons above given. It does not seem to have been raised, discussed or considered in that case, either at the general term or in the Court of Appeals. It appears to have been similar to this, with the important exception, that, in that instance, there was no question of *621fact to be determined, as there is here. Had this element existed in that case, a consideration of the consequences it must necessarily have involved would, probably, have impressed a conviction upon the mind of the court, that it had no power to act in the premises. In the case of Bulkley v. Staats (4 Redf., 524), I had occasion to consider a cognate question; and I adhere to and reiterate the views there expressed. There is a case briefly reported in 1 Tucker’s R., 240 (Estate of James Campbell), in which the Surrogate directed the refunding of the percentage and auctioneer’s fees to the bidder, but refused to order him reimbursed the amount expended for searches. The power of the court to do so apparently received no consideration, and the case can hardly be regarded as an authority of much weight. The direction to refund, seems to have been made on the application for an order confirming the sale, which was refused on account of irregularity.
I am asked to try, in this proceeding, between a per*622son over whom this court has no control and another whose official acts are mainly subject to its jurisdiction, a question of fact in the nature of a fraud. If entertained, it would have to be tried either upon affidavits —-a very unsatisfactory means of arriving at the truth -—or by the oral examination of witnesses. The parties would thus be deprived of a trial by jury of an important matter, and with which, of all others, a' jury is supposed to be most competent to deal. In effect, this; proceeding involves points pertaining to the nature of an action for specific performance, in so far as a knowledge, or want of knowledge, by the petitioner, of the order for the removal of the building, or buildings, is concerned. If he had such knowledge, before the sale, Ms excuse for non-fulfilment of Ms contract would fail, and he would be obliged to consummate it. Otherwise, he would be successful. I look in vain for any power given, either directly or by necessary implication, wMch will warrant this court to try such a case. *623and award damages for the neglect of an execntor to fulfil snch a contract. The legislature has never, hy any act which has come under my observation, manifested an intention to invest it with power so large, or to impose upon it a duty so onerous.
Application dismissed.