Gilman v. Gilman

35 Barb. 591, 1861 N.Y. App. Div. LEXIS 198

• Court: New York Supreme Court
• Decided: September 16, 1861
• Status: Published

Opinion

By the Court, Clerke, P. J.

It is the duty of the appellant, undoubtedly, to procure the return from the surrogate. But when the circumstances are such as to show that the appellant could not obtain the return, or could not take any steps to procure it, or to compel the return, the court will not dismiss the .appeal without giving him further time to do so.

In this case we think, although the delay was considerable, that the laches was not so great as to warrant the dismissal of the appeal.

The heirs, next of kin and legatees of the deceased, in addition to the executors, are interested in sustaining the order appealed from. They should therefore have been made parties to this appeal.

The appellant is permitted to amend by making such persons parties as he may be advisedand for this, and for the purpose of procuring the return, he may have twenty days from the entry and notice of the order to be entered hereon.

Motion denied, without costs.

Clerke, Ingraham and Leonard, Justices.]