Majority
p. 697In the Matter of the Distribution of the Estate of Robert H. Arkenburgh. (Surrogate’s Court, Rockland County. July, 1896.)
Headnote
Appeal prom surrogate’s court—Undertaking—Stay op execution.Code Civ. Proc. § 2577, relating to appeals generally from surrogates’ courts, provides for an undertaking in a sum not to exceed §250. Section 2580, relating to appeals by executors and administrators, regulates the amount of an undertaking on appeal from an order granting leave to issue execution, and provides that “in every other case it [the amount] must be fixed by the surrogate.” Held, that, unless the appeal is taken by an executor, only the undertaking mentioned ill section 3577 need be given to stay proceedings, it being provided by section 2584 that a perfected appeal has the same effect as a stay of the proceedings.
Motion for distribution of the estate of Robert H. Arkenburgh, deceased. Denied.
Robert F. Little, for the motion; Charles E. Souther and John Larkin, opposed.
—On the 12th day of December, 1895, a decree was made settling the account of Eliza J. Arkenburgh, as executrix, and Oliver M. Arkenburgh, as executor, of the will of R. EL Arkenburgh, deceased. Under that decree the executor is entitled to receive upwards of $16,000 ; in all, the sum of about $57,000 is directed to be distributed. An appeal has been taken by two of the legatees, the executor and other legatee not appealing. An undertaking for $250 to perfect the appeal under Code, § 2577, has been given. A motion is now
p. 698
made by the- executor for distribution under the decree, unless .a proper undertaking is given to stay the execution and enforcement of the decree. The question is, does the undertaking .already given effect a stay ? Section 2577 of the Code provides for the undertaking which has been given, and which is necessary to render the appeal effectual. The only other undertaking provided for on an appeal from a decree of the surrogate’s court is in cases of appeals by executors, administrators, trustees, guardians, or other persons appointed by the surrogate’s court. Then, to stay the enforcement of the decree, there must be an additional undertaking. Counsel for the executor and the motion insists that section 2580 gives the surrogate discretion to require an additional undertaking and fix the amount thereof. These are the words relied upon: “ In every other case it [the amount] must be fixed by the surrogate or by a judge of the appellate court, who may require proof,” etc. These words, however, clearly refer to undertakings required of executors, administrators, etc., and not to any other appellant. The case of Steinback v. Diepenbrock, 5 App. Div. 208 , 39 N. Y. Supp. 137 , cited in support of the motion, is not applicable. • There the appeal was from a judgment of the supreme court. There is authority for requiring an undertaking to indemnify a respondent against loss and damage in such a case that is not found in the provisions in reference to appeals from surrogates’ courts. My conclusion is that, unless the appeal is by the executor, administrator, etc., no undertaking can be required except the one for $250 required by section 2577, and that the giving of that undertaking on this appeal perfects the appeal, and hence, under section 2584, operates as a stay of proceedings to enforce the decree. Motion denied, with $10 costs.
Cases cited
- Steinback v. Diepenbrock 5 App. Div. 208 p. 698