In re Armstrong — 76 N.Y.S. 40

Majority

p. 40

In re ARMSTRONG.

(Supreme Court, Appellate Division, Third Department

May 7, 1902.)

Headnote

Surrogate’s Court—Administrator’s Account—Abating—Appeal.

Where a surrogate makes an ex parte order declaring the proceedings for the compulsory accounting of an administrator abated, and directing the petitioners to pay stenographer’s fees, an appeal will not lie from such order; but a motion should be first made to vacate the order, as void for lack of jurisdiction.

Appeal from surrogate’s court, Washington county.

Appeal by J. T. Eldridge, petitioner, and another, from an ex parte order of the surrogate’s court of Washington county declaring the proceeding in the compulsory accounting of Robert Armstrong, Jr., as administrator, abated, and directing payment by the petitioners of the stenographer’s fees.

Appeal dismissed.

Argued before PARKER, P. J., and SMITH, KELLOGG, CHASE, and FURSMAN, JJ.

Willard Robinson, for appellant J. T. Eldridge.

C. H. Sturges, for appellant Alfred C. Hodgman.

No appeal lies from an order or decree of this character. A motion in the surrogate’s court should be first made to vacate the order as void for lack of jurisdiction. The appeal is therefore dismissed. The order being without precedent, the dismissal is without costs.