Hildreth v. Lerche — 23 Abb. N. Cas. 428

Majority

p. 428

HILDRETH v. LERCHE.

N. Y. City Court, Special Term and Chambers;

November, 1889.

Headnote

■1. Appeals from surrogate's court; undertaking.] The provision of Code Civ. Pro., section 1309, that an action shall not he maintained upon an undertaking given upon an appeal, until ten days have expired since the service of a written notice upon the attorney, of the entry of a judgment or order affirming the judgment or order, does not apply to appeals taken from orders or decrees made by the surrogate. The Code provides for a complete system of appeals from the surrogate’s court, and the provisions relating to appeals from other courts have no application to appeals from that court.

"2. Action in undertaking in surrogate's courts The filing of the order of the surrogate, under section 2581, authorizing a party to commence an action on an undertaking, is the only prerequisite to such action.

Motion for an order over-ruling the demurrer as frivolous, and for judgment thereon.

The will of John G. Bethune was admitted to probate in the surrogate’s court, on June 11, 1886, and the widow appealed to the General ¡Term of the supreme court from ■the decree of probate. On such appeal an undertaking for •costs was given by the defendants in this action, Albrecht -J- Lerche and Joseph Ludwig, to the plaintiffs, as proponent •of the said will, and the same was filed with the clerk of the surrogate’s court. The General Term affirmed the decree of the surrogate, with costs. Thereupon a judgment •of affirmance and for costs was perfected, and the surrogate •caused an order to be entered granting leave to plaintiffs to bring an action on the aforesaid undertaking. An action was commenced, and defendants interposed a demurrer to

p. 429

the complaint on the ground that the same did not state facts sufficient to constitute a cause of action.^[1]

I do not think the notice required by section 1309 applies to appeals taken from orders or decrees made

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by the surrogate. Article 4, title 2, chapter 18 of the Code provides a complete system of appeals from orders or •decrees made in the surrogate’s court, altogether distinct from the provisions in reference to appeals from other courts. Section 2581 provides that the surrogate may at any time in his discretion authorize any person aggrieved, to bring an action upon an undertaking, given on appeal from an order or decree in his court, and this seems to be the only prerequisite to the cause of action provided for in the article of the Code relating to such appeals.

The plaintiff in this case having been thus authorized to bring this action, I think the demurrer bad.

Motion granted, with costs, and judgment may be entered by plaintiff.