In re Estate of Johnson

Headnote

Appeal — none lies from, an expa/rte order of a surrogate.

Appeal from an ex parte order made by the surrogate of Otsego county vacating a former ex parte order giving the appellant twenty-five additional days to serve a case and exceptions.

The court at General Term said: “ The surrogate granted an ex pa/rte order giving an executor, who was the appellant from a decree, twenty-five days additional time to serve a case and exceptions. Afterwards, on the application of Nthe respondent and on a new affidavit, the surrogate ex parte vacated the former order. From that last order this appeal is brought, so, at least, it is stated in the points on both sides, although we cannot identify the order appealed from as that which is mentioned in the notice of appeal.

“ It is the uniform rule that appeals do not lie from ex parte orders of the Special Term. The proper course is to move on notice to vacate an ex parte order. If the motion is refused an appeal may lie. But unless both parties have been heard by the

court below -there is not such a decision between them as we should be ashed to review.

“We do not see why that same rule should not apply to this case. Jlyslojj v. Powers (9 Paige, 322) is not in point.”