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In re the Judicial Settlement of the Accounts of Onderdonk

54 N.Y. St. Rep. 275 Court N.Y. Sur. Ct. Decision date 1893-06-19 English

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p. 275
In the Matter of the Judicial Settlement of the Accounts of Millard F. Onderdonk, Ex’r of Edward D. Hesdra, Deceased.
(Surrogate's Court, Rockland County,
Filed June 19, 1893.)

Headnote

1. Subbogate’s coubt—Decision—Findings.
An irregularity in the decision of a surrogate by reason of its failure to state separately the facts found and conclusions of law is waived by a failure of the aggrieved party to take an appeal and avail himself of his rights under § 2545 of the Code.
2. Same—Laches.
Motion to vacate the decree on the ground of a failure to file findings of facts and conclusions of law cannot be made after the expiration of one year.
Motion to set aside the decree settling the executor’s accounts.
Snider & Hopper, for executor; Charles S. Dunham,, for creditors ; L. Napoleon Levy, for legatee ; George S. Wyre, for legatee and devisee.

This is a motion to vacate and set aside a decree made in the above-entitled proceeding on November 6, 1891, adjusting and judicially settling the accounts of the executor, on the ground that the surrogate failed to file in his office his decision in writing, stating separately the facts found and the conclusions of law, in compliance with the requirement of § 2545, Code Civil Procedure. It is true that, while a written decision was filed by the surrogate, yet it did not separately state the facts and conclusions found. Two objections are advanced, waiver of the irregularity, if any ; and want of power in the court to grant relief at this late day, either of which is sufficient to defeat this motion.

p. 276
First, it would seem that the moving party has waived the irregularity, if auy, by his own failure to take an appeal and avail himself of his rights under § 2545 of the Code as to findings, requests to-find, and exceptions. In Matter of Hood, 104 N. Y., 108 -106 ; 5 St. Rep., 501 , Judge Finch, writing the opinion, says, in answer to the suggestion of counsel that, in the absence of requisite findings, the decree is irregular :

“ That does not follow. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue. If he suffers this necessary step to be omitted he will find himself without the means of reviewing the rulings of which he complains.” The second objection is well taken. It is now too late to obtain the relief sought. “ A motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment roll.” Code, §§ 724, 1282 ; Corbin v. Westcott, 2 Dem., 559 ; Hood v. Hood, 5 id., 50; Matter of Filley's Estate, 47 St. Rep., 428 ; Matter of Post, 38 id., 1; Matter of Foulks' Estate, 10 N. Y. Supp., 515 . A surrogate’s court has ¡tower “ to open, vacate, modify, or set aside ” its decrees or orders. Code, § 2481, subd. 6. But “ the powers conferred by this subdivision 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.” Id.; Matter of O'Neil, 46 Hun, 500 ; 12 St. Rep., 419 ; Matter of Carr v. Estate of Tompkins, 46 id., 585; In re Filley s Estate, 47 id., 428. Thus it appears that §§ 724, 1282, are specifically made applicable to surrogates’ courts, and the time within which the motion could have been made has expired. Corbin v. Westcott, supra ; In re Hood, supra ; In re Tilden, 98 N. Y., 434 -442 ; In re Foulks' Estate, supra. Even if it be assumed that it is an irregularity for the surrogate to fail to make and file such a decision with such statement of facts and conclusion of law, and the court had the power to hear the motion, yet it is not an absolute right of a complaining party to have the decree made and entered set aside. Hood v. Hood, 5 Dem., 50 . Upon the merits, even if the power existed, it is clear, within the authorities, that the motion should not be granted because of the laches of the applicant. “ Where a party has had his day in court he must show that it was not his fault that he did not improve it before he can get another day on the same matter.” In re O'Neil, supra ; In re Filley’s Estate, supra. The motion is accordingly denied, with ten dollars costs.