Majority
p. 851People ex rel. Hannah M. Stevens et al., App’lts, v. Abraham Lott, Surrogate, etc., Res’pt. (Supreme Court, General Term, Second Department, Filed December 14, 1886.)
Headnote
Surrogate — Power of to permit administrator to pile supplemental account—Code Civil Pro., § 2481, subd. 6--Mandamus—When not GRANTED.Where before a final decree was signed on the final accounting of an administrator, but after the referee’s report was confirmed, the administrator made an application to the surrogate to open the decree upon proof that . he had omitted to credit himself with a large sum paid one of the relators. Held, that the surrogate had power to allow the administrator to file a supplemental account and to send it hack to the referee under Code Civil Procedure, § 2481, subdivision 6 and that he cannot be mandamused to make the decree upon the first account.
Appeal from an order of a special term held in Kings county refusing a peremptory writ of mandamus against the respondent directing him to make a decree upon the judicial settlement of the accounts of an administrator.
Charles Lyons, Jr., for app’lt; Merritt E. Sawyer, of counsel; Charles G. Patterson, for res’pt.
There is no case made for a writ of mandamus. The relators applied to the surrogate of Kings
p. 852
county for a final accounting. The account of Nathaniel Miles, one of the administrators, was the subject of much objection, and the same was referred by the surrogate to Mr. W. S. Cogswell. After a protracted hearing the referee made a report which was confirmed by the surrogate. Before a final decree was signed the administrator Miles made an application to open the decree upon proof that he had omitted to credit himself with a large sum which had been paid to one of the relators, McMillen. The surrogate permitted Miles, the administrator, to file a “supplemental account thereof,” with vouchers, and the same was referred back to the referee to hear and determine the questions arising upon the account, and to report back the testimony. This order was within the statute power of the surrogate. By section 2481, subd. 6, the surrogate has power to open, vacate, set aside or modify a decree, or to grant new trials. His order in such a case is appealable, and. if erroneous, can be corrected by force of the same section. Mandamus is not a remedy by which such an order can be disregarded. The supplemental account involved the opening of the decree so far, and the duty of the surrogate was not a ministerial one to sign the decree, as it would have been if no supplemental account was permitted.
The order should be affirmed, with fifty dollars costs.
Pratt and Dykman, JJ., concur.