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In re Camp ex rel. Camp

88 N.Y. Sup. Ct. 387 Court N.Y. Gen. Term English

Judges Dykman and Cullen, JJ., concurred.

Delivered by Brown, P. J.:

Contents

Majority

p. 387
In the Matter of the Petition of William C. Camp for an Accounting by Calvin B. Camp, as his Guardian, etc. In the Matter of the Petition of Mary Ella Camp for an Accounting by Calvin B. Camp, as her Guardian, etc. In the Matter of the Petition of Julia Adelaide Camp for an Accounting by Calvin B. Camp, as her Guardian, etc.

Headnote

Special proceedings — revival thereof by or against an executor of a deceased party — in a Surrogate’s Court — • Code of Civil Procedure, §§ 755, 757, 3347.
The right to revive and continue pending undetermined special proceedings, in the name of or against the executors or administrators of deceased parties, depends entirely upon statutory authority.
The application of sections 755 and 757 of the Code of Civil Procedure is limited by subdivisions 6 and 4 of section 3347 thereof, and they do not relate to proceedings in Surrogates’ Courts; notwithstanding the amendment of such sections in 1891, they are still subject to the limitation of section 3347.
Appeal by Nelson Cross, an executor, etc., of Calvin B. Camp, deceased, from an order of the Surrogate’s Court of Kings county, entered in the office of the clerk of the Kings County Surrogate’s Court on the 13th day of November, 1893, continuing the first-above-entitled proceeding against the appellant.
Like appeals were taken by the petitioners Mary Ella Camp and Julia Adelaide Camp.
p. 388
W. O. Beecher, for the executor, appellant.
F. B. Jennm.gs, for the petitioners, respondents.

During the pendency of the above-entitled proceeding, and after. his accounts had been filed, the guardian died.

The proceeding was revived against the guardian’s executor, and the order of the surrogate is sought to be sustained under sections 755 and 757 of the Code of Civil Procedure. Prior to 1891 there was no authority for continuing a pending undetermined special proceeding in the name of an administrator or executor. (In re Palmer, 115 N. Y. 493 .)

The right to revive and continue sirch proceedings in the name of or against executors or administrators of deceased parties depends entirely upon statutory authority.

The sections of the Code referred to do not relate to proceedings in Surrogates’ Courts. Their application is limited by subdivisions 6 and 4 of section 3347 of the Code, which provides that chapter 8, which includes sections 755 and 757, applies, with certain exceptions not material on this appeal, to actions and special proceedings commenced in the Supreme Court, a Superior City Court, the Marine Court of the City of New York, or a County Court.

The fact that the sections relied upon to support the order were amended in 1891 does not make them applicable to all special proceedings. In their amended form they are still subject to the limi tation of section 3347.

The order of the surrogate is not, therefore, supported by any statutory authority, and must be reversed, with costs.

Dykman and Cullen, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements.

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