In re the Accounting of Scovill — 218 N.Y. 707

Majority

p. 707

In the Matter of the Accounting of Edward T. Scovill et al., as Executors of John Hyland, Deceased, Appellants. Margaret E. Clark, Respondent.

Headnote

Matter of Scovill, 171 App. Div. 890 , affirmed.

(Argued May 23, 1916;

decided June 6, 1916.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 20, 1915, which affirmed an order of the Livingston County Surrogate’s Court directing trial by jury of controverted questions of fact arising upon the hearing of a contested claim against the estate of John Hyland, deceased.

The following question was certified: “ In view of the . stipulation heretofore filed in this proceeding, that claimant’s claim be ‘ heard and determined by and before the surrogate of Livingston county, upon the judicial settlement of said estate, in pursuance of the statute in such case made and provided,’ had the surrogate, against the objections of the executors, the power, under and pursuant to the provisions of section.2771 of the Code of

p. 708

Civil Procedure, as amended by chapter 274 of the Laws of 1915, and section 2538 of the Code of Civil Procedure, as amended by chapter 275 of the Laws of 1915, to make the order appealed from, which directs a jury trial of the issues in said matter.”-

Nathan L. Miller for appellants.

John F. Connor and Charles D. Newton for respondent. .

Order affirmed, with costs, and questions certified answered in the affirmative; no opinion.

Concur: Willard Bartlett, Ch. J., Hiscogk, Chase, Cuddeback, Hogan, Cardozo and Pound, JJ.