In re the judicial settlement of accounts of Krauz — 3 N.Y. St. Rep. 297

Majority

p. 297

Matter of the judicial settlement of the accounts of Margaret Krauz as Admr’x.

(Supreme Court, General Term, Third Department,

Filed September, 1886.)

Headnote

1. Surrogate—Power to grant new triad or rehearing—Code Crv. Pro., § 3481, sued. 6.

By the Code of Civil Procedure, § 3481, subd. 6, the surrogate has. power to grant a new trial or new hearing for fraud or newly discovered evidence, or other sufficient cause, but by the same subdivision he is confined in the exercise of this power to like cases and manner' as a court of record-and of general jurisdiction.

3. Same—Reference—Order for further reference and new report.

Where a matter has been duly and regularly referred by the surrogate-to a referee to hear and determine, and full time allowed to the parties to present all material evidence, no fraud, clerical error or newly discovered evidence sufficient for a court of record to grant a new trial upon has been alleged, an order for further reference will not be sustained upon appeal.

John T. McDonough, for app’lt; Van Alstyne & Hevenor, for resp’ts.

Power is conferred upon the surrogate by section 2481 of the Code, subd. 6, “to open, vacate, modify, or set aside, or to enter as of a former time a decree or order of this court, or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.” But these powers, the same subdivision further provides, “must be exercised only in a like case- and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

We do not think the case made by the administratrix, upon which the surrogate sent this matter back to the referee for a further hearing and a new report, justified such an order. This matter was duly and regularly referred by the surrogate to the referee to hear and determine, a. trial was had in which the administratrix had full time and opportunity to present all the evidence she deemed material; no fraud, or clerical error is alleged, no such statement of newly discovered evidence is made as courts of record deem sufficient to grant a new trial upon, and no other sufficient cause is stated. Our examination of the proceedings leads to the conviction that the referee considered the claims of the administratrix for credits quite favorably to her. He evidently was impressed with the .fact that there were some expenditures by her which she was unable properly to prove, and he therefore could not allow; but he did. make quite .liberal allowances for “board, washing, mending,” etc., which possibly would have been less, if the vouchers had been complete for all the other expenditures..

p. 298

We are of the opinion that the surrogate ought not to favor delay and increased expense by reopening a case once régularly tried, unless the applicant makes such a case as the Code prescribes; and the same strictness in this respect should be observed as in the supreme court.

Order reversed with ten dollars costs and printing' disbursements.

Learned, P. J., and Bockes, J., concur.