In re May — 6 N.Y.S. 356

Majority

p. 356

In re May.

(Supreme Court, General Term, Fifth Department.

June 22, 1889.)

Headnote

1. Reference—Order— Amendment Nunc pro Tunc.

Where a surrogate decides to refer all questions arising upon an executor’s account for hearing and determination, and all parties proceed as if such reference had been made, while in fact the order as entered merely directs the referee to hear and report the evidence, the surrogate, on receiving the referee’s report, may amend the order of reference nunc pro tu/no.

2. Same—Appeal.

On appeal from such amending order the surrogate’s power to strike out one of the referee’s conclusions of law cannot be raised.

Appeal from surrogate’s court, Monroe county.

This was an application by Jane A. May, executrix of Yashti Acker, deceased, for a final settlement of her accounts. There was a reference, and decree on the referee’s.report. The executrix appeals from an order refusing to settle her exceptions and amending the order of reference nune pro tune.

Argued before Barker, P. J., and Dwight and Macomber, JJ.

IT. H. Woodward, for appellant. Ivan Powers, for respondents.

The form of the order of reference was that the referee should take the evidence which should be adduced, and report the same to the surrogate, with his opinion thereon. The surrogate, however, intended, and did actually decide, to rqake such order one for the hearing and determination of all questions arising upon such accounts. The parties, as well as the referee, have proceeded throughout, down to the time this application was made, on the assumption that the referee, under the order, had the power to hear and determine the issues. The notice of appeal from the decree was made on that hypothesis, and as though it was an attempt only to reverse the decision of the referee after confirmation of his report by the surrogate. Indeed, the appellant’s attorney had procured a settlement of the case on appeal by the referee in accordance with the proper practice in cases of a reference of the whole of the issues. Code, § 2546. TJnder these circumstances, the surrogate was justified in so changing the order of reference, nunc pro tune, as to conform it to his original direction. We are of the opinion, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements.

The question sought to be brought into this appeal, pertaining to the surrogate’s power to strike out the referee’s fourth conclusion of law, can only be properly presented when the appeal from the decree itself comes up. All concur.