In re the Estate of Doroski

Appellate Division of the Supreme Court of New York

In re the Estate of Doroski

19 A.D.2d 833, 244 N.Y.S.2d 635, 1963 N.Y. App. Div. LEXIS 3141

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

DecidedOctober 14, 1963

StatusPublished

This text of 19 A.D.2d 833 (In re the Estate of Doroski) 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 Estate of Doroski, 19 A.D.2d 833, 244 N.Y.S.2d 635, 1963 N.Y. App. Div. LEXIS 3141 (N.Y. Ct. App. 1963).

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Opinion

In a proceeding to remove Adam Doroski as the executor under the last will and testament of Henry Doroski, deceased; to appoint the petitioner Rose Romanowski as administratrix, c. t. a., in his stead, and for alternative relief, “with costs against Adam Doroski, personally,” the said executor, Adam Doroski, appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Suffolk County, entered January 30, 1963, as, in granting the petition and removing him and appointing the petitioner administratrix, c. t. a., imposed costs and disbursements upon him personally. Decree, insofar as appealed from, affirmed, with $10 costs and disbursements to respondent against appellant personally. The Surrogate’s memorandum granting the application for removal of the executor Doroski, made no mention of costs and disbursements. The proposed decree, which was submitted on notice, contained a provision for costs and disbursements to be imposed upon the executor personally. The executor contends, inter alla, that because of section 440 of the Civil Practice Act, costs could not properly be imposed in the decree since costs had not been imposed in the “ decision ”. In our opinion, section 71 of the Surrogate’s Court Act is the more appropriate section to be invoked, but neither section has a controlling application here because they both relate primarily to the rendition of a decision after a trial before the court without a jury. In the case under review there was no trial whatsoever, but colloquy only; and we do not regard the Surrogate’s memorandum as such a decision. The Surrogate’s “ determination ” was not pronounced until he had made the decree which awarded the costs and disbursements (see Surrogate’s Ct. Act, § 78). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.

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In a proceeding to remove Adam Doroski as the executor under the last will and testament of Henry Doroski, deceased; to appoint the petitioner Rose Romanowski as administratrix, c. t. a., in his stead, and for alternative relief, “with costs against Adam Doroski, personally,” the said executor, Adam Doroski, appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Suffolk County, entered January 30, 1963, as, in granting the petition and removing him and appointing the petitioner administratrix, c. t. a., imposed costs and disbursements upon him personally. Decree, insofar as appealed from, affirmed, with $10 costs and disbursements to respondent against appellant personally. The Surrogate’s memorandum granting the application for removal of the executor Doroski, made no mention of costs and disbursements. The proposed decree, which was submitted on notice, contained a provision for costs and disbursements to be imposed upon the executor personally. The executor contends, inter alla, that because of section 440 of the Civil Practice Act, costs could not properly be imposed in the decree since costs had not been imposed in the “ decision ”. In our opinion, section 71 of the Surrogate’s Court Act is the more appropriate section to be invoked, but neither section has a controlling application here because they both relate primarily to the rendition of a decision after a trial before the court without a jury. In the case under review there was no trial whatsoever, but colloquy only; and we do not regard the Surrogate’s memorandum as such a decision. The Surrogate’s “ determination ” was not pronounced until he had made the decree which awarded the costs and disbursements (see Surrogate’s Ct. Act, § 78). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.

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Bluebook (online)

19 A.D.2d 833, 244 N.Y.S.2d 635, 1963 N.Y. App. Div. LEXIS 3141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-doroski-nyappdiv-1963.