In re the Estate of Hood

10 N.Y. St. Rep. 879

• Court: New York Supreme Court
• Decided: July 1, 1887
• Status: Published

Opinion

Pratt, J.

—This is an appeal from an order of the surrogate of Westchester county, denying a motion to set aside a decree on the ground of irregularity in that no findings of fact or conclusions of law were made and filed. The decree in question was made upon a proceeding to compel the appellant to account as executor.

Assuming that a failure to make findings is an irregularity, the general rule is that a party aggrieved must move promptly and before taking other proceedings in the case. Here the defendant, instead of moving to vacate or correct the decree elected to proceed with an appeal relying upon this irregularity as a ground of reversal. Thus nearly two years was allowed to elapse before making this motion.

Such conduct was gross laches and ought not to be encouraged.

It is not necessary to determine what provision of the code is applicable to the fact disclosed upon this motion as we think, under ad the circumstances, it was discretionary with the surrogate either to grant or deny the motion and such discretion is not reviewable in this court. Prior v. Prior, 41 Hun, 513.

Order affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.