In re Clark — 61 A.D. 337

Majority

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In the Matter of the Application of Mary H. Clark, to Remove William W. Dorlon, as Sole Surviving Executor and Trustee under the Last Will and Testament of Philip S. Dorlon, Deceased. William W. Dorlon, Appellant; Mary H. Clark, Respondent.

Headnote

The failure of a surrogate for more than ninety days to pass upon the report of a referee confirms it — an omission to move for confirmation is not a waiver of the right thereto.

Under section 3646 of the Code of Civil Procedure, which provides “ Unless a referee’s report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days’ notice,” the omission of a surrogate to pass upon a report for five months after its submission to him operates to confirm'it and to give any party interested a legal right to a decree of confirmation, although a portion of the delay resulted from the inability of the surrogate, by reason of serious illness, to perform his duties.

The omission of an interested party to- move for a confirmation of the report after the expiration of ninety days does not constitute a waiver of his statutory right.

Appeal by William W. Dorlon from a decree of the Surrogate’s Court of the county of Rensselaer, entered in the office of said Sur

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rogate’s Court on the 22d'day of November, 1900, denying a motion to confirm the report of a referee and removing the said Dorlon from his trust as executor and testamentary trustee under the will of Philip S. Dorlon, deceased, with notice of an intention to bring up for review an order entered in the office of said Surrogate’s Court on the 20th day of September, 1899, appointing a referee in the proceeding, and also from an order entered in said surrogate’s office on the 7th day of January, 1901, denying the motion of the said William W. Dorlon for the confirmation of the report of. the said referee as of course, by reason of the failure of 'the surrogate to confirm, approve, modify or reject said report within ninety days after the referee had submitted the same to the surrogate. .

On September 19, 1899, on the petition of Mary H. Clark for the removal of William W. Dorlon, as trustee under the will of Philip S. Dorlon, deceased, an order of reference was made by the surrogate of Rensselaer county to take proof relative to the matters in issue, and to report the same with the referee’s conclusions thereon.

Ón April 16, 1900, the referee made his report, finding that the petitioner’s charges against the trustee were not sustained by the proofs, which report was filed in the office of the surrogate on. April 18, 1900, and on April 20, 1900, the petitioner served and filed exceptions to the report of the referee.

On April 30, 1900, the attorney for the trustee served notice of a motion to be made in the Surrogate’s Court on May 8, 1900, for an order approving, ratifying and confirming the report of the referee.

On May 8, 1900, the matter was brought on before the surrogate and was, by consent of parties, adjourned to May fifteenth, and thereafter was from time to time adjourned to June 14, 1900; on which day .the matter of the confirmation of the report was argued before the. surrogate, who directed briefs to be submitted to him on or before June eighteenth.

On November 21,1900, the surrogate made and filed, his decision, and on the following day a decree thereon was granted by the surrogate and entered in his office, adjudging that the confirmation of the report be denied and that the trustee be removed from his trust.

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. On December 24, 1900, an application, on notice, was made by the attorney for the trustee to the surrogate for a decree that the report of the referee be confirmed as of course, by reason of its not having been passed upon, confirmed, approved, modified or rejected by the surrogate within ninety days after its submission to him, and on January 4, 1901, an order was made by the'surrogate denying the motion, from which order, entered January 7, 1901, this appeal is taken. •

John P. Ourley [lewis P. Griffith of counsel], for the appellant.

John B. Holmes, for the respondent.

The denial by the surrogate of the appellant’s application for a decree confirming the report of the referee was error. More than five months had elapsed after the submission of the report to the surrogate before his decree rejecting it was made. Section 2546 of the Code of Civil Procedure, under which the reference was made, provides that “ Unless a referee’s report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days’ notice.” The language of the statute is clear and explicit, and leaves no room for interpretation. The legal effect of the omission of the surrogate for ninety days to pass upon the report is that it thereby becomes confirmed, and a party has thereafter a legal right to a decree of confirmation. That this was the intention of the Legislature is apparent, not only from the language of the section, but by comparing it with the previous provisions of this section. Prior to 1895, section 2546 of the Code of Civil Procedure contained no direction in respect to the time within which the referee’s report should be passed upon by the surrogate. In that year the section was amended by adding the words “A referee’s report must be passed upon and confirmed, approved, modified or rejected by a surrogate within sixty days after it has been submitted to him.” (Laws of 1895, chap. 796.) The section thus remained until 1899, when it was amendéd as first-above quoted. The legislative intent

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in the amendment of 1899 is obvious. Prior to that time no consequence was attached by the section to the failure of the surrogate to comply with the. direction to pass upon the report within sixty days, and no procedure was provided in the event of non-compliance. The statute as it then existed was directory merely. The amendment enlarged the time of the surrogate to pass upon the report from sixty days to ninety days, and for the first time provided, as a . consequence of his omission, that “ it shall be deemed to have been confirmed as of course.” By this amendment the statute which was before directory was clearly made mandatory.

The omission of the appellant to move immediately after the expiration of the ninety days for a confirmation of the report did not constitute a waiver of his right. By operation of the statute the report- becomes confirmed- after the lapse of ninety days, and no election is required by the party in whose favor the report is made.: He may at any time thereafter move for a decree of confirmation.

■ Hor can the filing by the trustee of the supplemental account, after the decree of the surrogate removing him from his trust, be construed to be a waiver. -He had instituted proceedings in the Surrogate’s Court for-a final judicial settlement of his accounts prior to the proceeding .to remove him, and such proceedings■ for an accounting were pending at the time of the surrogate’s decree, when" he asked leave to file a supplemental account and therein stated the fact that a decree had been made by the surrogate for his removal. ■The filing of this account, supplemental to the one filed eighteen months before in the pending proceeding for an accounting, was ■quite proper and cannot be deemed to. be such an acquiescence in -and submission to the surrogate’s decree as would bar an appeal therefrom, which was in fact duly taken by him, nor preclude him . from applying for a decree of confirmation of the referee’s report.

The inability of the surrogate, by reason of serious illness, to perform his duties during a part of the five months, after the submission to him of the report of the referee, did not suspend the operation of the statute.. If the want of a provision in the statute for such an exigency be a defect, the answer is, as was said by the court in Fifth Avenue Bank v. Colgate ( 120 N. Y. 394 ): “The court cannot correct errors or cure supposed defects in legislation.”

The order appealed from should be reversed, with costs.

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From what has been said it follows that the decree of the surrogate, adjudging that the confirmation of the report of the referee be denied and that the trustee be removed from.his trust, is erroneous and should be vacated and set aside by the surrogate.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to enter decree confirming report of referee granted, and decree removing trustee vacated.