Holmes v. Smith — 10 N.Y. Sup. Ct. 413

Majority

p. 413

DENNIS HOLMES and another, as Administrators, etc., Appellants, v. LUTHERIA SMITH, EDWIN DIBBLE AND OTHERS, RESPONDENTS.

Headnote

Chapter 869, Laws of 1871 — District attorney—when authorized to actas surrogate.

"When the county judge and surrogate are interested and cannot act as surrogate, and the special county judge is unable to give the bonds required by chapter 218, Laws of 1858, the district attorney of the qpunty is authorized by chapter 859, Laws of 1871, to act as surrogate. The words “ when there is no legal officer authorized to perform,” contained in section 8 of that act, are to be construed as though they read, “ when there is no officer legally authorized to perform.”

Appeal from an order made by the district attorney of Chenango county, acting as surrogate of said county, denying an application for an order to sell real estate, on the ground that he had no jurisdiction.

George W. Bay, for the appellants.

E. H. Prvndle, for the respondents.

Opinion, by Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Order reversed, and district attorney directed to proceed in the matter, with costs to the appellant, to be paid out of the estate.