Majority
p. 422(114 App. Div. 754) In re LOWENGUTH’S ESTATE. (Supreme Court, Appellate Division, Fourth Department. July 12, 1906.) Argued before McLENNAN, P. J., and SPRING, WILLIAMS, NASH, and KRUSE, JJ.
Headnote
1. Appeal—Appealable Order.An order overruling objections to the jurisdiction of the court is not final, and does not involve a substantial right, jurisdiction not having been exercised, and therefore is not appealable.
[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 648.]
2. Costs—Appeal—Dismissal on Court’s Own Motion.
An appeal from an unappealable order will be dismissed, without costs; the question of its appealability not having been raised by the parties. [Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, §§ 877-883.]
Appeal from Surrogate’s Court, Monroe County.
In the matter of the estate of Clara.Lowenguth, deceased. From an order overruling the objections of Emil J. Lowenguth and another, administrators, to the jurisdiction of the court to hear the proofs of the petitioners, Christopher C. Werner and another, praying that the surrogate fix the value of their services as attorneys rendered to the estate, the administrators appeal. Dismissed.
Hugh J. O’Brien, for appellants.
C. C. Werner, for respondents.
The order is not appealable. It disallows and overrules the objections of the administrators to the jurisdiction of the court, but is not final, as jurisdiction has not been exercised, and therefore does not involve a substantial right. Matter of Soule, 46 Hun, 661 ; Matter of Phalen, 51 Hun, 208 , 4 N. Y. Supp. 408 ; Matter of Pearsall (Sup.) 4 N. Y. Supp. 365 ; Matter of Burnett, 15 N. Y. St. Rep. 116 ,
Neither party having raised the question of the appealability of the order, the appeal should be dismissed, without costs.
Appeal dismissed, without costs to either party. All concur.
Cases cited
- In re the Accounting of Burnett 15 N. Y. St. Rep. 116 p. 422