In re the Amended Petition of Schroeder

Appellate Division of the Supreme Court of New York

In re the Amended Petition of Schroeder

253 A.D. 835, 1 N.Y.S.2d 607, 1938 N.Y. App. Div. LEXIS 8841

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 21, 1938

StatusPublished

Cited by2 cases

This text of 253 A.D. 835 (In re the Amended Petition of Schroeder) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Amended Petition of Schroeder, 253 A.D. 835, 1 N.Y.S.2d 607, 1938 N.Y. App. Div. LEXIS 8841 (N.Y. Ct. App. 1938).

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Opinion

Order denying contestants’ motion to open a default on the calendar call in the Surrogate’s Court, Kings county, reversed on the law and the facts and motion granted on condition that the appellants pay the respondent $100 and ten dollars costs and disbursements of the appeal within five days after the entry of the order and prepare and be ready to try the issues promptly when the proceeding shall be set down for trial in the Surrogate’s Court. On failure to perform such conditions the order is affirmed, with ten dollars costs and disbursements to the respondent. The contestants are attempting to proceed with the contest of a will without the aid of an attorney. Their methods are undoubtedly crude and, to a certain extent, exasperating. However, there seem to be possible merits to the contest, and they are entitled to their day in court. (Allen v. Fink, 211 App. Div. 411; Baldwin v. Yellow Taxi Corporation, 221 id. 717.) If they are in good faith in the prosecution of the contest, and their acts, though lacking in skill and courtesy, are not characterized by deliberate willfulness, with purposes of obstruction and delay, they may now have an opportunity to proceed with diligence. Carswell, Davis, Adel and Close, JJ., concur; Hagarty, J., dissents and votes to affirm, with the following memorandum: My vote rests on the decision of the learned surrogate, supported by the record, in my opinion. He held that “ The entire attitude and manner of action of the present applicant since the inception of the proceeding has been vexatious to a degree. He apparently knows little and cares less for the ordinary dictates of courtesy and orderly procedure and seeks to supply the deficiency by semi-incoherent vituperation and recitals of irrelevaneies, seemingly hoping thereby to capitalize upon the nuisance value of his objections.” The decision continues that, since no excuse for the defaults was offered, there is a strong inference that the defaults were designed to postpone the long overdue trial and that in any event there is no demonstration of merits or probability of success.

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Order denying contestants’ motion to open a default on the calendar call in the Surrogate’s Court, Kings county, reversed on the law and the facts and motion granted on condition that the appellants pay the respondent $100 and ten dollars costs and disbursements of the appeal within five days after the entry of the order and prepare and be ready to try the issues promptly when the proceeding shall be set down for trial in the Surrogate’s Court. On failure to perform such conditions the order is affirmed, with ten dollars costs and disbursements to the respondent. The contestants are attempting to proceed with the contest of a will without the aid of an attorney. Their methods are undoubtedly crude and, to a certain extent, exasperating. However, there seem to be possible merits to the contest, and they are entitled to their day in court. (Allen v. Fink, 211 App. Div. 411; Baldwin v. Yellow Taxi Corporation, 221 id. 717.) If they are in good faith in the prosecution of the contest, and their acts, though lacking in skill and courtesy, are not characterized by deliberate willfulness, with purposes of obstruction and delay, they may now have an opportunity to proceed with diligence. Carswell, Davis, Adel and Close, JJ., concur; Hagarty, J., dissents and votes to affirm, with the following memorandum: My vote rests on the decision of the learned surrogate, supported by the record, in my opinion. He held that “ The entire attitude and manner of action of the present applicant since the inception of the proceeding has been vexatious to a degree. He apparently knows little and cares less for the ordinary dictates of courtesy and orderly procedure and seeks to supply the deficiency by semi-incoherent vituperation and recitals of irrelevaneies, seemingly hoping thereby to capitalize upon the nuisance value of his objections.” The decision continues that, since no excuse for the defaults was offered, there is a strong inference that the defaults were designed to postpone the long overdue trial and that in any event there is no demonstration of merits or probability of success.

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253 A.D. 835, 1 N.Y.S.2d 607, 1938 N.Y. App. Div. LEXIS 8841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-amended-petition-of-schroeder-nyappdiv-1938.

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