In re Plumb — 4 Silv. Sup. 514

Majority

p. 514

In the Matter of the Application for the Removal, etc., of James Neale Plumb, as General Guardian.

Supreme Court, First Department, General Term,

November 7, 1889.

Headnote

Surrogate’s court. Payment of debts.—Objections to the sufficiency of the petition, or the merits of the application, are not available on a motion to appoint a new in place of a deceased referee, after the original order has been affirmed on appeal.

Appeal from an order of the surrogate appointing a referee in the place of a referee deceased.

Henry Thompson, for appellant.

David McQlure, for respondent.

This general term decided, upon an-

p. 515

appeal from the order directing a reference and appointing the referee who has since died, that the surrogate had the power to make the order appealed from.

The referee named in that order having died, this motion was made to appoint some suitable person as referee in the place of the deceased referee.

Upon the hearing of this motion the counsel for the appellant attempted to raise objections to the sufficiency of the petition which upon the previous appeal this court held would have been fatal to the original application, had they been made before answer was filed to the petition.

It seems to be clear that such objections cannot avail upon this motion.

The proceeding is before the surrogate. He had determined that a reference was necessary to take proof, and this determination has been affirmed upon appeal.

The referee originally named having died, the only question before the surrogate was the naming of another in his place. The determination to refer having been upheld, and being finally determined to be proper, no objection going to the merits of the application can be entertained.

As was stated upon the previous appeal, this objection comes too late.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dartels and Barrett, JJ., concur.'