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In re Westurn's Estate

39 N.Y.S. 429 Court N.Y. App. Div. Decision date 1896-05-04 English

Delivered by MERWIN, J.

Contents

Majority

p. 429
(5 App. Div. 595.)
In re WESTURN’S ESTATE. In re CARNEY et al.
(Supreme Court, Appellate Division, Third Department.
May 4, 1896.)

Headnote

Appeal—Order Affecting Substantial Right.
An order dismissing a motion by administrators to set aside a citation to show cause why their letters should not be revoked, made on the ground that the proof was not sufficient to authorize the citation, does not affect a substantial right.
Appeal from surrogate’s court, Warren county.
Proceeding to revoke letters of administration on the estate of •Samuel Westurn, deceased, issued to Adele Carney and another. From an order dismissing a motion made by the administrators to set aside a citation requiring them to show cause why the letters •should not be revoked, they appeal.
Dismissed.
Argued before PARKER, P. J., and LAND ON, HERRICK, MERWIN, and PUTNAM, JJ. ,
A. Armstrong, Jr., for appellants.

On the 25th of May. 1895, letters of administration upon the estate of Samuel Westurn were issued to the appellants. Thereafter on the 3d of January, 1896, upon petition of the respondent, verified December 18, 1895, a citation was issued by the surrogate’s court, directed to the said administrators, requiring them to show cause why a decree should not be made revoking the letters issued to them. This citation was returnable February 12, 1896. Thereupon the appellants, upon notice to the ■respondent, made a motion in the surrogate’s court, on the 20th •of January, 1896, to set aside the citation, on the ground that the petition did not furnish sufficient proof to authorize the citation. This motion was based solely on the petition and citation. Upon the hearing in the surrogate’s court on the 20th of January, 1896, the preliminary objection was taken by the respondent that the ■citation had not been served on the administrators, and that they had no standing in court to make the motion. The motion was thereupon dismissed. From the order of dismissal the administrators appeal.

An appeal is allowed from an order of the surrogate’s court when it affects a substantial right. Code Civ. Proc. § 2570. The motion in the present case was made before the return day of the citation, and before the citation was served. There is nothing in the papers indicating that any right of the appellants was affected, in the absence of the service of the citation. Whether, at that stage .of the case, a motion to vacate the citation would be entertained, was in the discretion of the surrogate’s court. The order •of dismissal will not interfere with any motion the appellants may

p. 430
make after service is in fact made, or affect their rights upon the return day, even if the service of the notice of motion be deemed an appearance. We are of the opinion that the order dismissing the motion did not affect a substantial right, and is therefore not appealable. See In re Soule’s Will, 46 Hun, 661 , affirmed 109 N. Y. 662 , 17 N. E. 868 ; In re Phalen, 51 Hun, 208 , 4 N. Y. Supp. 408 ; In re Odell, 15 N. Y. St. Rep. 116 ; Tracy v. Reynolds, 7 How. Prac. 327.

Appeal dismissed. All concur.

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