p. 538In the Matter of the Settlement of the Account of Nathaniel Niles, as Adm’r, etc.(Supreme Court, General Term, Second Department,Filed February 13, 1888.)Headnote
1. Surrogate’s Court—References of issues m accounting—Power OF REFEREES UNDER CODE CrV. PRO., §2546.By the provisions of Code Civil Procedure, section 2546, a surrogate may refer an account of an administrator which is disputed, to a referee to hear and determine all questions arising upon the settlement subject to the confirmation of his report by the surrogate. The referee in such a case has the same power as a referee appointed by the supreme court, and the provisions applicable to such an officer are likewise applicable to him.
2. Same—Filing of decision by surrogate—When required by Code; Civ. Pro., § 2545.
The requirement of Code Civil Procedure section 2545, that a surrogate file a decision stating separately his findings of fact and conclusions of law, refers to trials conducted before the surrogate as a trial court, and not to those issues which can be and are referred to a referee to hear and determine.
3. Same—Appeal from: order made on referee’s report—Settlement of CASE.
If a case be made of the proceedings before a referee on an accounting, he may settle the case, the surrogate is charged with no duty in that regard. If the surrogate confirms or refuses to confirm the referee’s report, his action is to be reviewed upon the proceedings had before the referee, but there is no provisien made for new findings by the surrogate in case of refusal.
Appeal from an order made by the surrogate of Kings county.
Marston Niles, for appl’t; Charles Lyons, Jr., for Resp’ts; Merritt E. Sawyer, of counsel.
There does not appear to be any good ground for this appeal. Nathaniel Niles, an administrator of the estate of a deceased person, made and filed his account to which objections were filed. By 2546 of the Code, a surrogate may refer a disputed account such as this
p. 539was to a referee, to hear and determine all questions arising upon the settlement subject to the confirmation of his report by the surrogate. The surrogate’s referee has the same power as a referee appointed by the supreme court, and the provisions applicable to a referee in the supreme court are to be applied to the referee from the surrogate, without regard to forms of proceeding. The referee in this case made his report, and the same was approved by the surrogate. The surrogate has no duty in respect to the settlement of the case. By section 2545 of the Code, the surrogate is required to file a decision stating separately his findings of fact and conclusions of law. This section refers to trials conducted before the surrogate as a trial court, and not to those issues which can be and are referred to a referee to hear and determine. As to such references the next section applies, and the same rule governs as is applicable to a reference in the supreme court. The referee is to all intents and purposes, the surrogate, so far as respects the trial of the issue before him.
If a case is made of the proceedings, the referee will settle it of necessity, in accordance with the practice in the supreme court, as far as applicable. Theoretically, he alone, knows the_ history of the trial, and by section 99f of the Code, a case in the supreme court must be settled by a referee when he is the trial court. The power of conformation does not change the case. If the surrogate confirms or refuses to confirm, his action is to be reviewed upon the proceedings had before the referee. No provision is made for new findings by the surrogate in case of disapproval. No doubt the surrogate can send report back for correction, or conduct a new trial himself. The issue before the referee must be the subject of a separate appeal, if confirmed by the surrogate and an appeal be desired, or if he refuses confirmation and an appeal from that action be desired. The findings of fact are to be presented in the settlement of the case in issues before the surrogate, according to section 2545 of the Code, and this provision will apply to referees who try issues from that court. The surrogate had no findings of fact to make, and the time has not come to review a refusal of the referee to find. The confirmation of this report is an approval of the rulings of the referee, and the appeal to this court will present this conclusion of the surrogate for review.
The surrogate’s order should, therefore, be affirmed, with costs and disbursements.
Dykmax and Pratt, JJ., concur.