Hyperlawhypertext legal databasebeta In re Hesdra's Estate 23 N.Y.S. 846

← Cases

In re Hesdra's Estate

23 N.Y.S. 846 Court N.Y. Sur. Ct. Decision date 1893-06-19 English

Contents

Majority

p. 846
(4 Misc. Rep. 37.)
In re HESDRA'S ESTATE. In re ONDERDONK.
(Surrogate’s Court, Rockland County.
June 19, 1893.)

Headnote

L Surrogate's Court—Decision—Findings.
Failure of the surrogate to file his decision in writing, stating separately the facts found and the conclusions of law, as required by Code Civil Proc. § 2545, is no ground for setting aside the decree where the moving party has made no request for such finding, or excepted to the failure to find, as further provided by such section.
2. Same—Vacation op Decree.
Code Civil Proc. §§ 724, 1282, which provide that a motion to set aside a final judgment for irregularity shall not be heard after the expiration . of one year from the filing of the judgment roll, are made applicable to surrogate’s courts by section 2481, subd. 6, which empowers them to open, vacate, modify, or set aside their decrees, but which requires such power to be exercised in like cases and in the same manner as courts of general jurisdiction exercise the same power; and hence a motion, made more than a year after the rendition of a surrogate’s decree, to vacate it, on the ground of his failure to file findings of fact and conclusions of law, will be denied.
Proceeding for the judicial settlement of the accounts of Millard F. Onderdonk, as executor of the last will and testament of Edward D. Hesdra, deceased. The executor moves to set aside the decree settling his accounts.
Motion denied.
For other proceedings concerning this estate, see 2 N. Y. Supp. 82 ; 20 N. Y. Supp. 79 ; 23 N. Y. Supp. 842 .
Snider & Hopper, for executor.
Charles S. Dunham, for creditors.
L. Napoleon Levy, for legatee.
George S. Wyre, for legatee and devisee.

This is a motion to vacate and set aside a decree made in the above-entitled proceeding on November 6, 1891, adjusting and judicially settling the accounts of the executor, on the ground that the surrogate failed to file in Ms office his decision in writing, stating separately the facts found and the conclusions of law, in compliance with the requirement of section 2545, Code Civil Proc. It is true that, while a written decision was filed by the surrogate, yet it did not separately state the facts and conclusions found. Two objections are advanced,—waiver of the irregularity, if any; and want of power in the court to grant relief at tMs late day,—either of wMch is sufficient to defeat tMs motion.

p. 847
First, it would seem that the moving party has waived the irregularity, if any, by his own failure to take an appeal and avail himself of his rights under section 2545 of the Code as to findings, requests to find, and exceptions. In Re Hood, 104 N. Y. 103 -106, 10 N. E. Rep. 35 , Judge Finch, writing the opinion, says, in answer to the suggestion of counsel that, in the absence of requisite findings, the decree is irregular:
“That does not follow. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue. If he suffers this necessary step to be omitted he will find himself without the means of reviewing the rulings of which he complains.”

The second objection is well taken. It is now too late to obtain the relief sought. “A motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment roll.” Code, §§ 724, 1282; Corbin v. Westcott, 2 Dem. Sur. 559; Hood v. Hood, 5 Dem. Sur. 50; In re Filley’s Estate, (Surr.) 20 N. Y. Supp. 427 ; In re Post, (Sup.) 14 N. Y. Supp. 205 , 206; In re Foulks’ Estate, (Surr.) 10 N. Y. Supp. 515 . A surrogate’s court has power “to open, vacate, modify, or set aside” its decrees or orders. Code, § 2481, subd. 6. But “the powers conferred by this subdivision must be exercised only in a like case, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” Id.; In re O’Neil, 46 Hun, 500 ; In re Carr’s Will, and In re Tompkins’ Estate, (Sup.) 19 N. Y. Supp. 647 ; In re Filley’s Estate, (Surr.) 20 N. Y. Supp. 429 . Thus it appears that sections 724, 1282, are specifically made applicable to surrogates’ courts, and the time within which the motion could have been made has expired. Corbin v. Westcott, supra; In re Hood, supra; In re Tilden, 98 N. Y. 434 -442; In re Foulks’ Estate, supra. Even if it be assumed that it is an irregularity for the surrogate to fail to make and file such a decision with such statement of facts and conclusion of law, and the court had the power to hear the motion, yet it is not an absolute right of a complaining party to have the decree made and entered set aside. Hood v. Hood, 5 Dem. Sur. 50. Upon the merits, even if the power existed, it is clear, within the authorities, that the motion should not be granted because of the loches of the applicant. “Where a party has had his day in court he must show that it was not Ms fault that he did not improve it before he can get another day on the same matter.” In re O’Neil, supra; In re Filley’s Estate, supra.

The motion is accordingly denied, with $10 cost

Cases cited