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In re the Estate of Deyo

43 N.Y. Sup. Ct. 512 Court N.Y. Gen. Term English

Judges Learned, R. J., concurred.

Decision Majority (1) — Landon, J.: · Concurring — Book.es, J.:

Contents

Majority

p. 512
In the Matter of the Estate of JACOB H. DEYO, Deceased.

Headnote

Decree of surrogate on final account — when it will not he opened to correct am error*
September 3, 1883, an executor applied to a surrogate to vacate a decree made upon bis final accounting in September, 1874, in order to correct an alleged* error against tbe executor amounting to $380.02.
B.eld, that considering tbe lapse of time, the smallness of tbe amount involved, and tbe inconclusive character of tbe evidence as to tbe existence of tbe error tbe surrogate properly refused to reopen tbe decree.
Appeal from an order made by the surrogate of Ulster county, denying an application to have a decree reopened.
A. T. Clearwater, for Jonathan Deyo, one of the executors, appellant.
Lewis Hasbrouelc, for John Titus, Jr., one of the executors, and Jacob H. Deyo, a legatee, respondents.

The surrogate made his decree upon final accounting September 9,1814.' This is an appeal from an order made by the surrogate September 3, 1883, nine years afterwards, refusing to vacate the final decree and reopen the settlement to the end that an alleged error against the appealing executor to the amount of $280.02 be corrected. We think the order should be affirmed. The lapse of time, the smallness of the amount, the inconclusive evidence of the existence of the alleged error, convince us that the surrogate wisely exercised his discretion in refusing to reopen the decree.

Order affirmed, with ten dollars costs and printing disbursements»

I concur in this opinion. After the lapse of nine years from the entering of the decree, it should not be opened except upon the clearest evidence of mistake. Such evidence is not, as I think, before us. The presumption in favor of the record is not here answered, save by a suspicion as to its correctness. That will not be*held to be sufficient, even after a brief period of time and muck

Concurrence

p. 513
less when brought forward after a delay greater than that which would bar an ordinary action on account.

Learned, R. J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.