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In re Braker's Estate

143 N.Y.S. 860 Court N.Y. App. Div. Decision date 1913-10-17 English

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p. 860
In re BRAKER’S ESTATE. Appeal of FLETCHER.
(Supreme Court, Appellate Division, First Department.
October 17, 1913.)

Headnote

1. Courts (§ 202*)—Probate Appeal—Serving Papers—Opening Default.
The surrogate has no authority to open a default in serving printed papers on appeal to the Appellate Division.
[Ed. Note.—For other cases, see Courts, Cent Dig. §§ 480-486; Dec. Dig. § 202.*]
2. Appeal and Error (§ 633*)—Dismissal of Appeal—Grounds.
In the absence of a valid reason why the printed papers on appeal to the Appellate Division were not filed and served, a motion to dismiss the appeal will be granted.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2772-2774; Dec. Dig. § 633.[1] ]
In the matter of the estate of Conrad Braker. On motion to dismiss Fletcher’s appeal. Motion granted.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
William P. S. Melvin, of New York City, for the motion.
Frederic W. Frost, of New York City, opposed.

[1] The surrogate has no authority to open a default in serving printed papers on appeal to this court. The question whether the'default is to be enforced, and whether appellant is to be given more time to file and serve printed papers and perfect the appeal, is for this court.

[2] As no reason is given why the printed papers were not filed, the motion to dismiss the appeal is granted.