Comey v. Clark — 23 N.Y. St. Rep. 402

Majority

p. 402

John F. Comey, App’lt, v. Mary J. Clark, Impleaded, et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 29, 1889),

Headnote

1. Surrogate’s court—Surplus moneys—Code Crv Pro., § 2798.

The directions for the payment of surplus moneys into the surrogate’s court, contained in section 2798 of the Code Civil Procedure, contemplates such payment prior and not subsequent to proceedings for its distribution among those having claims upon it.

% Same—When objection to deposit op surplus money unavailing.

Where a party participated in a proceeding wherein certain surplus moneys were directed to be paid into the hands of the city chambt rlain, without making any suggestion that such moneys should have been paid into the surrogate’s court, instead of into the hands of the chamberlain, and without questioning that the moneys were properly deposited: Feld, that upon her failure to establish a claim to any portion of said money, it is too late to insist that another tribunal was the proper depository.

p. 403

Appeal by Harriet A. Fithian from, part of a final order, confirming referee’s report in surplus money proceedings.

Horace Secor, for app’lt; George W. Cotterill, forresp’ts.

The counsel for the appellant has argued but one objection to the order of the special term; and that is, that it should have directed the payment of half the surplus money into the surrogate’s court, under section 2798 of the Code of Civil Procedure. The answer in behalf of the respondent is that the appellant has no standing in court to make this objection. She was not a party to the suit. Her only status in the case was as a claimant to the surplus. The referee held that she had no Hen thereon, and hence no right to appear in the proceeding. Ho exception was taken to his ruling in this respect, so far as the record shows, but, on the contrary, the appellant seems to have acquiesced in its correctness.

It is difficult to perceive, under these circumstances, what interest she has to have the surplus paid into the surrogate’s court, even if it ought to go there at this time. It does not even appear that she is a creditor of the decedent’s estate, as her written claim does not establish that fact, and the evidence taken before the referee is not printed in the appeal book. *

But assuming that she has an interest sufficient to enable her to prosecute this appeal on the sole ground upon which her counsel seeks to sustain it, we are of the opinion that the directions for the payment of surplus money into the surrogate’s court, contained in section 2798 of the code, contemplates such payment prior and not subsequent to proceedings for its distribution among those having claims upon it. If under that section, any of the surplus moneys derived from the sale in this case should have gone into the surrogate’s court instead of being paid into the supreme court, they should have gone there before the present proceeding was instituted. But the appellant participated in the present proceeding without any suggestion so far as appears that the surplus moneys, or any portion thereof, should be in the surrogate’s court instead of in the hands of the chamberlain; she made her claim against the fund knowing that it was in the custody of the supreme court, and without questioning that it was properly deposited there; and now that she has failed to establish that claim, it is too late for her to insist that another tribunal was the proper depository.

The appeal should be dismissed, without costs.

Van Brunt, P. J., concurs in result; Daniels, J., concurs.