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In re Daymon

61 N.Y.S. 997 Court N.Y. App. Div. Decision date 1900-01-09 English

Delivered by WILLARD BARTLETT, J.

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p. 997
In re DAYMON.
(Supreme Court, Appellate Division, Second Department.
January 9, 1900.)

Headnote

Bindings by Surrogate—Trial—Decree.
A decree by a surrogate settling an executor’s account, without compliance with Code Oiv. Proc. § 2545, requiring him to file with his decision tacts found, and conclusions of law, will be reversed; such findings being essential as a basis for the decree.
Appeal from surrogate’s court, Westchester county.
Accounting by William D. Daymon, executor of Sophia Harriott, deceased. From a decree thereon, and from an order denying an application to set aside the decree, said Daymon appeals. Reversed.
Argued before GOODRICH, P. J., and BARTLETT, HATCH, and WOODWARD, JJ.
Jacob Halstead, for appellant.
Samuel F. Swinburne, for respondent Leonie G. Tyler, legatee.

This is an appeal from a decree of the surrogate’s court upon an executor’s accounting, and from an ■order denying an application to set aside the decree in order to enable the accounting executor to put in the testimony of a material witness whom he had not been able to call upon the hearing. The account of the executor was objected to on the ground that he had failed to account for $2,000' paid to his testatrix shortly before her death. The executor put in a reply alleging that the testatrix had made a gift of these moneys to him. Upon this issue a hearing was had before the surrogate, which resulted in the decree appealed from, charging the executor with the $2,000 in controversy.

The record does not contain any findings by the learned surrogate; and the counsel for the respondent, in his brief, expressly-states that the surrogate made no findings as required by section ■2545, "Code Civ. Proc. Such findings are indispensable as a basis for the decree. In their absence the record presents no question which we can review. In re-Sprague, 125 N. Y. 732 , 26 N. E. 532 ; In re Kaufman (Sup.) 14 N. Y. Supp. 901 ; In re Bradway, 74 Hun, 630 , 26 N. Y. Supp. 838 . Undier these circumstances, the proper course to pursue is to remit the case, to the surrogate as an undecided cause, in order that he may make and file findings as prescribed by law. This is the procedure which we have adopted in cases in the supreme court where the trial judge has failed to make findings, or the short decision now permitted in lieu thereof by section 1022 of the Code of Civil Procedure. Hall v. Beston, 13 App. Div. 116 , 43 N. Y. Supp. 304 ; Shaffer v. Martin, 20 App. Div. 304 , 46 N. Y. Supp. 992 . As there has been no final decision of the matter, in this view of the law, the learned surrogate will doubtless permit the appellant to put in the proof which he could not procure upon the original hearing, if the executor now presents good and sufficient reasons for being allowed to do so.

Decree reversed, and proceeding remitted to the surrogate’s court in order that the surrogate may make and file the findings prescribed

p. 998
by section 2545 of the Code of Civil Procedure; the costs of this-appeal to abide the final award of costs.' Appeal from order denying motion to vacate decree dismissed, without costs. All concur.

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