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In re the Estate of Olney

281 N.Y. 98 Court N.Y. Decision date 1939-07-11 English

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p. 98
In the Matter of the Estate of James P. Olney, Deceased. Farmers National Bank and Trust Company of Rome, as Executor and Trustee under the Will of James P. Olney, Deceased, Appellant. Stoddard M. Stevens, as Special Guardian for Barbara VD. Lambert et al., Infants, Respondent.
p. 99
Argued May 25, 1939;
decided July 11, 1939.
Michael J. Larkin for appellant.
p. 100
Edward A. Wolff and Stoddard M. Stevens for respondent.

The appeal must be dismissed upon the ground that this court is without jurisdiction as the order is not a final order. The order does not end the proceeding in so far as appellant is concerned as to any part thereof. It does not irrevocably determine its rights, irrevocably change its position, or sever the proceeding. The reason why it is not irrevocable is that the payment is to itself and can always be restored. There still remains the necessity of a further hearing in the Surrogate’s Court. (Matter of Clift, 256 N. Y. 680 ; Maggi v. Sabatini, 250 N. Y. 296 ; Cohen on The Powers of the New York Court of Appeals, p. 31, § 9.)

The appeal should be dismissed, with costs.

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Appeal dismissed.

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