In re the Accounting of Van Vliet — 224 N.Y. 545

Majority

p. 545

In the Matter of the Accounting of Jeptha Van Vliet et al., as Executors of Anna Van Vliet, Deceased.

Headnote

Appeal — modification by Appellate Division as to costs — appeal may be taken of right to Court of Appeals.

An order of the Appellate Division modifying a surrogate’s decree in respect of the award of costs is one of modification within the meaning of subdivision 1 of section 190 of the Code of Civil Procedure and an appeal to the Court of Appeals may be taken of right.

Reported below, 181 App. Div. 879 .

(Submitted April 22, 1918;

dccided June 4, 1918,)

Motion for leave to appeal to the Court of Appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 21, 1918, modifying and affirming as modified a decree of the Queens County Surrogate’s Court overruling objections to the accounts of the executors of Anna Van Vliet, deceased.

Selden Bacon for motion.

John Ewen and R. W. Kellogg opposed.

The Appellate Division modified the surrogate’s decree in respect of the award of costs. The order was, therefore, one of modification within the meaning of section 190, subdivision 1, of the Code of Civil Procedure, and an appeal to this court may be taken of right. The appellant is not required to show that the modification resulted to her prejudice. The statute contemplates an appeal to this court whenever the Appellate Division has found error in the whole of in any part of the judgment or final order before it for review. On the ground that leave to appeal is unnecessary the motion is denied, without costs.