In re Plumb — 7 N.Y.S. 493

Majority

p. 493

In re Plumb.

(Supreme Court, General Term, First Department.

November 7, 1889.)

Headnote

Rbeehence—Objections Waived.

On motion to appoint a referee in place of a deceased referee, whose appointment has been affirmed on appeal, objections to the merits of the original application cannot be considered.

Appeal from surrogate’s court, New York county.

Application by Sarah Lenita Plumb, a minor, for the removal of James Neale Plumb as general guardian of her person and estate. For former re

p. 494

ports of different phases, of the litigation, see 4 N. Y. Supp. 135 , 831. From an order appointing a referee in place of a deceased referee, James N. Plumb appeals.

Argued before Van Brunt, P. J., and Barrett and Daniels, JJ.

Vanderpoel, Cuming & Goodwin, (Henry Thompson, of counsel,) for appellant. Turner, McClure & Ralston, (David McClure, of counsel,) for respondent.

This general term decided upon an appeal from the order directing a reference, and appointing the referee, who has since died, that the surrogate had the power to make the order appealed from. 4 N. Y. Supp. 135 . The referee named in that order having died, this motion was made to appoint some suitable person as referee in the place of the deceased referee. Upon the hearing of this motion the counsel for the appellants attempted to raise objections to the sufficiency of the petition which, upon the previous appeal, this court held would have been fatal to the original application had they been made before answer was filed to the petition. It seems to be clear that such objections cannot avail upon this motion. The proceeding was before the surrogate. He had determined that a reference was necessary to take proof, and this determination has been affirmed upon appeal. The referee originally named having died, the onlyquestion before the surrogate was the naming of another in his place. The determination to refer having been upheld and being finally determined to be proper, no objection going to the merits of the application can be entertained. As was stated upon the previous appeal, this objection comes too late. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.