In re the Judicial Settlement of the Account of Post — 46 N.Y. St. Rep. 129

Majority

p. 129

In the Matter of the Judicial Settlement of the Account of Henry A. V. Post.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

Appeal—Reference in surrogate’s court.

An order of a surrogate setting aside the report of a referee and referring the matter back to the referee, is not appealable.

Appeal from an order of the surrogate referring this matter back to a referee who had previously been appointed to examine the administrator’s account and the objections thereto, and to determine all questions arising upon the settlement of said account which the surrogate has power to determine.

J. C. O'Connor, Jr., for app’lt; Frederic W. Hinrichs, for resp’t.

This appeal is premature. The surrogate had power under § 2546 of the Code of Civil Procedure to make the original order of reference, and his action in appointing a referee thereunder is not the subject of review. In re Pearsall, 21 St. Rep., 305 . Still less is his present action the subject of review. The order appealed from required the referee to proceed with the accounting as originally directed and made no final disposition of the matter.

When the referee has reported under this direction, and his report has been confirmed or set aside, and a final order of the surrogate made thereon, there will be a proper subject of review; but not until then. The matter at present is simply utider investigation. Hone the less so because the surrogate "set aside a report under the original order of reference which, if confirmed, would have been final. If the surrogate, in setting aside this report, had made a final order, that would have been reviewable, but when he set it aside with directions to proceed anew under the principles laid down in his opinion, the whole matter was left in abeyance until the coming in of a further report and until a final order is made upon such further report.

The appeal should therefore be dismissed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Barrett, JJ.. concur.