Majority
p. 206In the Matter of the Application of Isaac E. Pye and Others, Creditors, Respondents, for an Order Revoking Letters Testamentary on the Estate of Edward G. Van Houten, Deceased, Issued to Erastus Van Houten, Appellant.
Headnote
Power of the Appellate Division over the orders of Surrogates' Courts.The Appellate Division has no power to review an order; made by a Surrogate’s Court, denying a motion to vacate an order punishing a person for contempt in failing to obey a former final order and decree of the same court, removing him as executor of an estate.
Appeal by Erastus Van Houten from an order of the Surrogate?s Court of Rockland county,' entered in said Surrogate’s Court on the 28th day of June, 1897, denying his motion to vacate an order of said Surrogate’s Court made on the 3d day of February, 1897, punishing him for contempt of court.
On the 18th day of January, 1897, an amended final order and decree was made in the above-entitled proceeding, removing Erastus Van Houten, as executor, and enjoining him from in any way exercising control over or interfering with any property which belonged to the estate of Edward Gr. Van Houten, deceased, which came into his possession as executor, and further requiring, that the' livery stable business and the property employed therein should be delivered to the executrices of the decedent or their representatives.
On the 3d day of February, 1897, the surrogate made an order-adjudging Erastus Van Houten to be in contempt for failing to obey the said order and decree.' Erastus Van Houten appealed to the Appellate Division in the second department from this order of
p. 207
February 3, 1897, and it was affirmed -upon appeal, whereupon he moved before the surrogate to vacate and set aside the ■ said order of February 3,1897, and it is from the order denying such motion that this appeal is taken.
Garrett Z. Snider, for the appellant.
John M. Perry, for the respondents.
This court can review the discretionary power of the Surrogate’s Court so far only as authorized by statute. The provisions of section 2481 of the Code of Civil Procedure do not provide for a review, as if it were an original application in this court, of the determination of the surrogate in such a case as the present. (Matter of Tilden, 98 N. Y. 434 ; Matter of Hawley 100 id. 206; Matter of Hodgman, 82 Hun, 419 .) There does not appear to have been any abuse of.discretion by the Surrogate’s Court in the denial of the motion. The power is with that court, and reference will be had to the order only to ascertain the ground upon which the motion was denied.
The order should be affirmed.
All concurred.
Order affirmed.