In re the Estate of Latz — 18 N.Y. St. Rep. 532

Majority

p. 532

In the Matter of the Estate of Catharine Latz, Deceased.^[1]

(Court of Appeals,

Filed October 2, 1888.)

Headnote

Appeal to the court op appeals—When an appeal does not lie under Code Civ. Pro., § 160, subdivision 3.

In answer to a petition to the surrogate praying for an order requiring an executor to account for unadministered assets of the estate of which his testator was administrator, remaining in his hands, the executor pleaded among other things the statute of limitations as a bar thereto, and the surrogate decided that the said statute' was a bar. Upon appeal the gtneral term of the supreme court reversed the order of the surrogate and directed that the proceedings be remitted to the surrogate for an accounting as demanded by the petiiion. Held, that the order of the general term was not a final order, and being made in a special proceeding was unappealable to the court of appeals.

Appeal from an order of the supreme court, general term, fifth department, reversing an order of the surrogate’s court of Erie county, dismissing the petition of Martin Clark, as administrator, etc.

Jacob Stern, for app’lt; Martin Clark, for resp’t.

Martin Clark, as administrator de bonis non of the estate of Catharine Latz, deceased, presented his petition to the surrogate, praying for an order against the executrix of John Latz, deceased, administrator of said Catharine Latz, requiring her to account for the unadministered assets of said Catharine Latz remaining in the hands of such executrix.

The executrix answered such petition and plead, among other things, the statute of limitations as a bar thereto.

The facts upon which the defense was based were substantially admitted upon the hearing, and the surrogate decided that the statute was a bar to further proceedings. Upon appeal to the general term that court' reversed _ the order, of the surrogate, and directed that the proceedings

p. 533

be remitted to the surrogate for an accounting as demanded by the petition.

This order is not a final order, and being made in a special proceeding, is therefore unappealable to this court. Subd. 3, § 190, Code of Civil Procedure; Roe v. Boyle, Exr., etc., 81 N. Y., 305 ; In re. Whittlesey v. Hoguet, 66 N. Y., 358 .

The question whether this proceeding is barred by the statute of limitations may be the subject of litigation upon the accounting, but whether so or not is immaterial upon the question of the powers of this court to review the order appealed from.

The .adjudication of the general term was not final upon any question in the case.

The appeal must therefore be dismissed, with costs.

All concur.