In re the Judicial Settlement of the Account of Post — 38 N.Y. St. Rep. 1

Majority

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In the Matter of the Judicial Settlement of the Account of Henry A. V. Post, Adm’r.

(Supreme Court, General Term, First Department,

Filed April 17, 1891.)

Headnote

1. Surrogate’s court—Power of surrogate to amend order.

A surrogate has power to amend an order made by him, setting aside the report of a referee, by inserting a recital of the papers which were be fore him on the hearing which resulted in such order, where such recital was omitted from the order.

2. Same—Laches.

A delay from April to October in moving for such amendment is not such laches as to deprive the moving party of the right to relief where the motion was made in the same month that motion was made to dismiss an appeal for failure to include such papers in the case.

3. Same—Terms.

In such case the motion to amend should require not only the payment of motion costs, but also the disbursements on the appeal which the amendment made a useless expenditure.

Appeal from an order of the surrogate of the county of Hew York, amending and settling a preceding order entered with his direction.

John C. O' Conor, Jr, for app’lt; Fred. W. Hinrichs, for resp’t.

An order was made by the surrogate directing Henry A. V. Post, the appellant in this proceeding, to account as administrator of Edwin Post, deceased, for the estate of Cornelia Post, deceased, of which he was the administrator. His account was filed, and objections were presented to it. And the case was then referred to a referee, who, after hearing the evidence, decided and reported in favor of the appellant, on the ground that the statute of limitations protected him against the accounting, so far as it had been drawn in controversy. This decision of the referee was made the subject of exceptions by the party insisting on the liability of this administrator so to account. And on the hearing of the exceptions the surrogate concluded that the statute was not a bar to the claim- for this accounting, and set aside the referee’s report, and ordered the case back for a further hearing. From that order an appeal was taken by the same appellant to this general term. And the printed case to present it contained no more than the record itself of the surrogate’s court. An application to dismiss it for want of a case was made to this court, but

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that was not entertained for the reason that the clerk of the surrogate’s court had certified the return as correctly including the papers which were referred to in the order, and it was suggested if any correction should be made, it was to be done by the surrogate. An application was then made for that purpose to the surrogate, and he ordered the preceding order to be amended in its recitals, the chief of which was that the evidence, exhibits, and abstracts of accounts introduced on the reference, and the exceptions, and requests to find, were before the surrogate on the hearing which resulted in the order setting aside the report of the referee. The objection has been taken that the surrogate acted without authority in making this amendment to the recitals in the order which was first entered.

That order was entered on the 18th of April, 1890, and the order to show cause why the "change should not be made was not obtained until the tenth of the next October. But this was not so great a period of delay as to preclude the respondent from making the motion, especially as it was in that month that the motion -was-made in this court to dismiss the appeal for want of a case containing that evidence. After the refusal to entertain that motion for the reason that the surrogate’s court was the proper tribunal to which application for relief should be made, the motion there was made with all practicable diligence.

And the power of the surrogate to entertain and favorably dispose of it has been fully supplied by subdivision 6 of § 2481 of the Code of Civil Procedure. For by that subdivision he has been given the authority to open, vacate, modify, set aside, or enter as of a former time, a decree or order of his court. And the only qualification to which' it has been subjected is that it must be exercised only in a like case, and in a similar manner as a court of record and general jurisdiction exercises the same powers. And that these courts have been vested with this power of amendment and correction appears from § 724 of the Code, providing, among other things, that they may supply an omission in any proceeding. This was such an omission. And it was within the power of correction in this manner given to the surrogate. The order as it had been entered was incorrect in its omission to recite that the evidence, exhibits and abstracts which were before the referee, and the exceptions to his findings and refusals to find, formed part of the hearing before the surrogate to set aside the report of the referee. And it was the duty of the surrogate to provide for its correction by adding, as he did, the statement of this fact to the recitals of the order.

But the order is objectionable in the terms on which it was made. They were the payment only of motion costs. These terms should also have included the disbursements on the appeal, which the amendment made a useless expenditure. These expenses were regularly incurred as the order had been entered at first, and from which the appeal had been taken. And as the appeal will now require a new case to present it, the expenses previously incurred should also have been required to be paid as a condition for the amendment of the order.

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In that respect the order should be modified by requiring as a condition of the amendment the payment of the expenses previously incurred on the appeal, and as modified affirmed, without costs of "this appeal.

Yah Brunt, P. J., and Lawrence, J., concur.