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In re the Final Judicial Settlement of the Account of Atkinson

12 N.Y. St. Rep. 570 Court N.Y. Gen. Term Decision date 1887-12-13 English

Delivered by Pratt, J.

Contents

Majority

p. 570
In the Matter of the Final Judicial Settlement of the Account of Clara R. Atkinson as Admr’x of George H. Atkinson, deceased.
(Supreme Court, General Term, Second Department,
Filed December 13, 1887.)

Headnote

1. Refebee—-What is sufficient appointment of.
An order directing a party to attend before another, describing the latter as referee, is a sufficient appointment of the latter as referee. The words, “ hereby appointed," may be fairly implied.
3. Same—Objection to appointment of—What is not.
The fact that there is another proceeding pending before the same person, is no objection to his appointment as referee.
The administratrix herein voluntarily presented her accounts for settlement ; thereafter an heir-at-law filed objections thereto, and an order of reference m usual form
p. 571
was made. After the administratrix had rested her side of the case, and the contestant had examined several witnesses, counsel for contestant asked referee to compel administratrix to take the witness stand and be examined, not as a witness by them, but generally touching her account; she refused. The surrogate made an order compelling her to do so. This order she moved to set aside, claiming that it was increasing the power of the referee; was not within the meaning of section 2735 of the Code. From the order refusing to vacate said order she appeals.
The order is as follows :
“You are hereby ordered ana required to attend before John A. Clarry, Esq., referee, on the eighth day of July, 1887, at two o’clock in the afternoon of that day, at his office, room No. 89, in the Garfield building, No. 26 Court street, in the city of Brooklyn, then and there to be examined under oath, pursuant to section 2735 of the Code of' Civil Procedure, touching your receipts and disbursements as administratrix, etc., of George H. Atkinson, deceased; and touching any other matter relating to your administration of the estate; and touching any property owned and held by the decedent at the time of his death.
(Signed) ABRAHAM LOTT,
Surrogate.
James E. Church, for app’lt; Daniel B. Thompson, for contestants.

We think the order of July 6, 1887, was a sufficient appointment of John A. Clarry as referee to take the examination provided for in the order.

The object of the examination is clearly pointed out, and the order to “ attend before John A. Clarry, referee,” is a sufficient appointment of him as referee.

If the order had read, “referee hereby appointed,”probably the appellant would not contend that the order was not effectual to make the appointment.

We think the omitted words may well be implied.

The surrogate has ample power to order the examination and appoint a referee to take it. We think he has exercised the power effectually.

The fact that another proceeding is pending before the referee is no objection to the order.

No reason is shown why it should be vacated, and the <order refusing to vacate must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.