In re Estate of Schermerhorn

38 A.D. 350, 57 N.Y.S. 26

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1899
• Status: Published

Opinion

Van Brunt, P. J. :

We fail to find, and our attention has not been called, to any authority conferred upon the surrogate to make such an order as the one appealed from. There are provisions for reviewing the determination of the surrogate by appeal and there are also provisions authorizing the' surrogate under certain circumstances to modify and set aside' adjudications which may have been made . by him. The application made to the surrogate in this ease falls under neither of these heads; and the relief granted is not embraced within any power which the surrogate possesses.

The order appealed from is simply a decretal order declaring erroneous a previous order, and that a payment in pursuance of the previous order was made in error. The order referred to remained unreversed,, unmodified and of full effect; and, consequently, has the same force that it had prior to this attempt upon the part of the surrogate to decree it erroneous. If an application had been made to the surrogate to modify the order, different questions might have arisen. But it is difficult to sec how even such a motion could now avail, the timé to appeal from the order"having expired and it having become final and conclusive.

We think, therefore, that the surrogate was entirely without jurisdiction to make the order appealed- from and that the same should be reversed, with costs, and the motion, of the petitioner-denied, with costs. .

Barrett, Rumsey, O’Brien and Ingraham, JJ.; concurred.

Order reversed, with costs, and motion denied, with costs.