In re Post's Estate — 18 N.Y.S. 812

Majority

p. 812

In re Post’s Estate. In re Davis.

(Supreme Court, General Term, First Department.

March 31, 1892.)

Headnote

1. Appeal—Matters not Apparent on the Record. ■

Requests to find, and exceptions to the rulings of a referee appointed by a surrogate to pass on an administrator’s account, cannot be considered on an appeal from an order refusing to confirm the referee’s report, and referring the matter back, where such requests and exceptions are not mentioned in such order.

2. Same—Record—Requests to Find.

On an appeal from a judgment on the report of a referee an appellant who has presented requests to find may review the action of the referee in refusing the same, and for that purpose may insert in the case, on appeal or bill of exceptions, his requests to find, and the rulings thereon; but where the party presenting such requests succeeds before the referee, and no judgment is rendered against him on the referee’s report, but he appeals from an order refusing a decree on such report, he is not entitled to insert in the case, or the papers on which the appeal is heard, his requests which have been refused. ■

Appeal from surrogate’s court, New York county.

Petition by Jane Eliza Davis, as administatrix with the will annexed of -Cornelia Post, deceased, to compel an accounting by Henry A. V. Post, as administrator of Edwin Post, deceased, who in his lifetime had been administrator of Cornelia Post, deceased. From an order denying a motion to allow'petitioner to file her requests to find, and the rulings of the referee thereon, nunc pro tune, in the surrogate’s court, said petitioner, Jane Eliza Davis, appeals.

Affirmed.

For the order of the surrogate sustaining the exceptions to the referee’s report, and sending the report back to the referee to proceed with the accounting, see 9 N. Y. Supp. 449 . For decision on appeal from an order of the

p. 813

surrogate resettling and amending the order referring the matter back to the-referee, see 14 N. Y. Supp. 205 .

Argued before Van Brunt, P. J., and O’Brien and Ingraham, JJ.

George D. Beattys, (Frederic W. Hinrichs, of counsel,) for appellant. John C. O'Connor, Jr., for respondent.

The appellant presented to the surrogate a petition asking-that H. A. V. Post, as administrator of Edwin Post, be required to account;, and an order was entered by the surrogate, directing said administrator to-file his account. The said account, and exceptions thereto, were referred to-a referee; and the referee filed his report, directing that the proceedings be dismissed, on the ground that the statute of limitations was a bar, and also-on the ground that said administrator could not be compelled to account for the trust funds in the proceedings before him. " Numerous requests to find were submitted by the petitioner, which were passed upon by the referee,— many being refused, and some found; and the petitioner filed exceptions to-the referee’s report, and also to the refusal of the referee to find as requested. Upon a motion for the confirmation of such report, the surrogate refused to-confirm the report, sustained the exceptions thereto, and ordered that the matter, and all papers and proceedings therein, be referred back to the referee to proceed with the accounting; and from that order the administrator has appealed to this court. 9 S. Y. Supp. 449.

The papers upon which the surrogate made that order are recited in the order, and no mention is made of the requests to find submitted to the referee, or of the exceptions to the action of the referee upon such requests. It is clear that the appeal from this order must "be heard upon the papers upon, which the order was made; and as these requests to find, and exceptions to-the rulings of the referee upon such requests, are not recited in the order as papers upon which the order was granted, they cannot be considered upon the-appeal from the order by this court. There appears to be no provision for filing requests to find, upon which a referee has passed. On an appeal, however, from a judgment or decree entered upon the report of a referee, the-party presenting such requests, where he is appellant, has a right to review the action of the referee in refusing his requests to find, and for that purpose can insert in the case on appeal or bill of exceptions his requests to' find, andi the ruling of the referee thereon. But where the party presenting such requests succeeded before the referee, so that no judgment or decree is entered against him upon the referee’s report, as in this case, but appeals from an order which refuses to enter a decree upon such report, he is not entitled to insert, in the case, or the papers upon which the appeal is heard, his requests to find, where the same have been refused, as there is no appeal before the court presenting the questions raised by the rulings of the referee against the successful party before him. We think, therefore, that the order of the surrogate was right, and should be affirmed, with $10 costs and disbursements..

All concur.