Majority
p. 1087(65 Misc. Rep. 417.) In re SMITH’S ESTATE. (Surrogate’s Court, New York County. November 23, 1909.)
Headnote
Courts (§ 202[1] )—Surrogate’s Court—Procedure—Opening Decrees.Proceedings to reopen decrees of a Surrogate’s Court may be instituted by an order to show cause or notice of motion; and the publication of a citation is not required, though the executor is a nonresident.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 202.[1] ]
In the matter of the. appraisal of the estate of George Smith, deceased. Application to reopen decree assessing a transfer tax.
Application denied.
Daniel Seymour, for State Comptroller.
Henry W. Jessup, specially appearing for respondent.
The only question presented, _ or which can properly be considered, upon this appeal, is as to whether the executor of the decedent, now moving, was properly brought before the court by an order to show cause served upon him by mail, he being a resident of a foreign jurisdiction, instead of by a citation issued and published in the form required to initiate the proceedings in this court that are required by law to be so commenced. It has for many years been the practice in this court to initiate proceedings in this court for the re
p. 1088
•opening or vacating of decrees by order to show cause or notice of motion; and, since the decision of Mr. Surrogate Rollins in Cluff v. Tower, 3 Dem. 253 , the propriety of this procedure must be considered as finally settled. The practice in the Supreme Court is the same. Cluff v. Tower, supra; Furman v. Furman, 153 N. Y. 309 , 47 N. E. 577 , 60 Am. St. Rep. 629 ; Code Civ. Proc. §§ 1282, 1283.
Application denied.
Cases cited
- Furman v. Furman 153 N. Y. 309 p. 1088