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In re Darragh's Estate

3 N.Y.S. 283 Court N.Y. Sur. Ct. Decision date 1888-11-28 English

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p. 283
In re Darragh’s Estate.
(Surrogate’s Court, New York County.
November 28,1888.)

Headnote

Appeal—Requisites—Bond—Power of Subrógate.
Code Civil Proe. N. Y. § 1303, made applicable to appeals from a surrogate by-section 2575, provides that where an appellant seasonably and in good faith serves notice of appeal, but omits, through mistake or excusable neglect, to do any other act necessary to perfect the appeal, the court in or to which the appeal is taken may permit the omission to be supplied. Held, that the surrogate may permit appellant to file and serve any undertaking on appeal, where he has acted in good faith, and bis omission was through excusable neglect.
The will of Catharine Darragli, deceased, was on the petition of Bose Duffin, a legatee, admitted to probate on May 14, 1888; the executor, M. J. Doherty, and William and James Ryan, minors, by their guardian ad litem, Theophilus B. Steele, appearing in support of the will, and Henry C. Darragli appearing in opposition thereto. The contestant served notice of appeal June-8, 1888, and now applies for leave to file and serve an undertaking on appeal.
A. Oldrin Salter, for contestant. Thomas P. Fitzsimmons, for executor. John Belahunty, for legatee Dullin. Theophilus B. Steele, guardian ad litem, for infants.

This is an application by the contestant appellant for leave to-file and serve an undertaking on appeal herein. The notice of appeal was duly served. The application is opposed by the special guardian, on the ground that it should be made to the general term. Section 1303, Code Civil Proc., provides that “where an appellant seasonably and in good faith serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from, the court in or to which the appeal is taken, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.” This section is made applicable to an appeal taken from a decree of this court by section 2575. This court has full jurisdiction to entertain this application. In the following cases an appeal was taken to the general term, and an application, under section 1303, (or 327, Old Code,) made at special term, and entertained: Mills v. Thursby, 11 How.Pr. 129 ; Insurance Co. v. Insurance Co., 10 How. Pr. 344 . And it was expressly held in Arnoux v. Homans, 32 How. Pr. 382 , that the court below could entertain such application. The case of Parks v. Murray, 109 N. Y. 646 , 16 N.

p. 284
tice of appeal and the requisite undertaking, and, after the appeal was perfected, (section 1326,) the supreme court made an order directing plaintiff to file a new undertaking. Held, the motion should have been made in the court of appeals, and not in the supreme court. In the case under consideration the appeal has not been perfected. Having no doubt of the power of this court to grant the application, there simply remains the question whether it ought to be granted on the facts as stated by petitioner, which are not controverted. The appellant, I think, has acted in good faith, and his omission to file and serve the undertaking is excusable neglect. Motion granted.

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