In re the Accounting of Bodine — 119 A.D. 493

Majority

p. 493

In the Matter of the Accounting of Albert Bodine, as Administrator, etc., of Mary A. Bodine, Deceased. Duncan McGibbon and Others, Appellants; Jacob I. Houseman and Lilian Bodine, as Administratrix, etc., of Albert Bodine, Deceased, Respondents.

Second Department,

May 3, 1907.

Headnote

Executors and administrators — when decree settling account of administrator should not he opened — relief from errors of referee— surety of administrator not entitled to notice of accounting.

When after many delays and adjournments covering twenty years, a decree is entered settling the accounts of an administrator who was served with notice ' of the entry hut allowed the time to appeal to expire, he is not entitled to an' •

p. 494

order vacating the decree on the ground that the contestants have been guilty of laches, or - because by reason- of the delays, vouchers by which he might exculpate himself have been lost, etc.

Section 2481 of the Code .of Civil Procedure, empowering the surrogate to vacate a decree for fraud, newly discovered evidence, clerical error, or other sufficient cause, does not authorize the vacating of the decree under the circumstances stated. Objections to the errors- of the referee appointed on the accounting of . an administrator must be taken before the.referce and before the surrogate on the application to confirm the report, or by appeal.. ' ■ . ■ •

The surety of an accounting administrator is not entitled' to notice of the proceed- ;

■ ing and in-the absence of fraud is bound by the decree.

Appeal by Duncan .MeGibbon and others from a decree of the Surrogate’s Court of the county of Bichmorid, entered in said Sur-' rogate’s Court on the 31st day of August, 1905," vacating a prior decree which was entered on the" 21st day of June, 1899.

Alfred G. Reeves [Harold Swain with him on the brief], for • - the appellants. - •

Henry J. 'McCormick, fdr the respondents.,

" This proceeding, the ordinary accounting of an administrator, was .begun in 18J9 by the filing of the administrator’s account and objections thereto. ■ After many protracted- adjournments and various substitutions of attorneys and referees, it resulted in a referee’s report and a decree confirming it, entered June 21, 1899, by which the administrator was charged with the sum of $58,244.31. All proceedings were had on -notice -to the administrator, and' he appeared in person and by attorney before the referee whose report was confirmed as aforesaid. -He was- served with notice of .the entry of said- decree, "and after tlie time to appeal from it had-expired the motion was made by- him and one of his sureties resulting in the order appealed from, which vacated said decree and referred the matter back to said referee for further hearing and determination. The grounds for the motion stated in the moving,. .' affidavits are that tlie contestants have been guilty of laches in not pressing the issue to a speedy determination; that as a result of the . various delays and substitutions many of tlie administrator’s . books', vouchers and papers have been lost, so -that he cannot now,

p. 495

as lie says, “ exculpate himself,” and that at some stage of the proceeding the administrator’s counsel stated that the next of kin had agreed to abandon their claims. Section 2481 of tl>e Code of Civil Procedure specifies the grounds upon which the surrogate may • make such an order, to wit, “ fraud, newly discovered evidence, clerical error, or other sufficient cause.” It is not pretended that there was any fraud, that any new evidence has been discovered, that any clerical error was committed, or that any like cause existed for granting • the motion, and it is plain that the words “ other sufficient cause ” must have an “ ejusdem generis ” interpretation. It is not necessary to- cite authorities upon the proposition that said section cannot possibly be construed. so as to include any of the ■ alleged grounds of this motion. The respondents’ brief treats the order as one opening a default, but if there was a default it was willful. Said administrator, after appearing' before’ the referee as aforesaid, arid while being examined as a witness, refused to submit to further examination and abandoned the proceedings. It is asserted that the • proceeding .was barred by the Statute of Limitations, but however dead it may have appeared at times, it had sufficient life at all times to be revived. The .only other ground urged on the brief, is that the referee acted upon proof that he had no right to consider. It is not shown that there is the slightest merit in any of the contentions I have enumerated ; but if there were,, the .place to urge them was before the referee and the ' surrogate on the application tó confirm the report, and if error was committed the.remedy was by appeal.. . The surety is not entitled to intervene now to reopen the. proceedings and start a new series of delays. He was not entitled to notice of the .proceedings'leading up to the decree, and in the absence of fraud is bound by it. Our conclusion’is that upon the case presented the surrogate had no power to-grant the order appealed' from, and it should-be reversed..

Jerks, Hooker, Gaynor and Rich, JJ.’ concurred.

Order of the Surrogate’s’Court of Richmond county reversed,' ■ with ten dollars costs and disbursements.