In re the Final Accounting of Dumesnil

Headnote

An appeal from an order or decree of a surrogate without filing a bond as security for respondent’s costs, as required by section 108, title 3, chapter 9, part 3 of the Revised Statutes (2 R. S., 610) is ineffectual for any purpose, and after the expiration of the time limited for appeal it is not in the power of the court to grant any relief.

Upon motion to dismiss such an appeal, the court has no power to annex any conditions to the dismissal.

The surrogate of the city of Hew York made a decree upon the final accounting in this matter, and an order making various allowances for counsel fees, which were filed and recorded April 12th, 1871; certain of the distributees of the estate, on the 12th of July, 1871, filed and served, a notice of appeal from the decree and order, but without filing any bond as security for respondents’ costs. On the 27th July the appellants served a petition of appeal with an ex pa/rte order, directing that the petitioners be heard ex parte unle s the respondents answer the petition within twenty days. Thereupon the administrator and others to whom various sums were directed to be paid by the said surrogate’s decree and order, moved to vacate the ex parte order and to dismiss the appeal and the petition of appeal for irregularity, and to authorize and require the surrogate to proceed in paying over the moneys, etc. The court granted the motion as far as it referred to the order of the surrogate restricting allowances, and also ordered that the appeal from the decree be dismissed unless the appellants pay ten dollars costs, and file a bond as security for costs. The distributees appealed from the first part of the order, and the administrator and those joining with him in the motion appealed from the latter part.