Gale v. Edsall

8 Wend. 460

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Nelson, J.

It is objected that the surrogate had no power to make the second order under the act. The statutes provides that upon the petition of the widow, I R. S. 60, § 3 and 12, the surrogate shall issue an order to ¡three disinterested freeholders of the county, to be by him appointed for that purpose, to admeasure, &c. There can be no doubt, if one the admeasurers should decline serving or die, on a proper application, the surrogate has the power to appoint another person in his place. If this power is not necessarily to be inferred from the terms of the statute, and I am of opinion it is, it is clearly incidental, being essential to carry into effect the object and intent of the act. It was said the proceedings must begin de novo.. If this were to be admitted, it would not ava^ defendant, as the order appointing the admeasurers is the first proceeding of the officer, and it appoints Wilkin in connection .with Craig and Moffat, admeasurers. But I do not Put the decision on this ground. No objection was made at the trial of want of notice, and it cannot now be urged.

Tompkins vs. Sands.