In re the Estate of Walker

New York Surrogate's Court

In re the Estate of Walker

4 Mills Surr. 280, 43 Misc. 475, 89 N.Y.S. 459

CourtNew York Surrogate's Court

DecidedApril 15, 1904

StatusPublished

Cited by1 cases

This text of 4 Mills Surr. 280 (In re the Estate of Walker) is published on Counsel Stack Legal Research, covering New York Surrogate's Court 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 Walker, 4 Mills Surr. 280, 43 Misc. 475, 89 N.Y.S. 459 (N.Y. Super. Ct. 1904).

Pincite

Opinion

Fitzgerald, S.

The order of reference made in this matter, which is a proceeding to dispose of real estate for the payment of decedents debts, is in effect an order which requires the referee to take and report the evidence upon the facts, with his opinion thereon. Of the power of the court to make such order, under the authorization given to the surrogate by section 2546 of the Code of Civil Procedure to appoint a referee “ to take and report to the surrogate the evidence upon the [281]*281facts,” there can be no doubt. Matter of Ferrigan, 42 App. Div. 1; affd., 160 N. Y. 689; Matter of Pearsall, 21 N. Y. St. Repr. 305; Matter of Hale, 45 App. Div. 579. Section 2546 also empowers the surrogate to appoint a ¡referee to take and report the evidence “ upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine,” and further declares that: “ Such a referee has the same power * * * as a referee appointed by the supreme court, for the trial of an issue of fact in an action.” The most cursory examination of this language suffices to show that it is not confined in its application to referees appointed in any one of the classes of reference specified, but applies to each and all of them. Matter of Russell, 3 Dem. 377, 378; Matter of Leffingwell, 30 Hun, 530. This being so, it is obvious that the referee appointed in this proceeding has the same power to pass upon questions of the admissibility or exclusion of evidence as a referee appointed by the Supreme Court to try an issue of fact in an action. See Matter of Allemann, 1 Conn. 441. This matter is remitted to the referee to make such rulings as may be proper in the premises.

Decreed accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

Fitzgerald, S.

The order of reference made in this matter, which is a proceeding to dispose of real estate for the payment of decedents debts, is in effect an order which requires the referee to take and report the evidence upon the facts, with his opinion thereon. Of the power of the court to make such order, under the authorization given to the surrogate by section 2546 of the Code of Civil Procedure to appoint a referee “ to take and report to the surrogate the evidence upon the [281]*281facts,” there can be no doubt. Matter of Ferrigan, 42 App. Div. 1; affd., 160 N. Y. 689; Matter of Pearsall, 21 N. Y. St. Repr. 305; Matter of Hale, 45 App. Div. 579. Section 2546 also empowers the surrogate to appoint a ¡referee to take and report the evidence “ upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine,” and further declares that: “ Such a referee has the same power * * * as a referee appointed by the supreme court, for the trial of an issue of fact in an action.” The most cursory examination of this language suffices to show that it is not confined in its application to referees appointed in any one of the classes of reference specified, but applies to each and all of them. Matter of Russell, 3 Dem. 377, 378; Matter of Leffingwell, 30 Hun, 530. This being so, it is obvious that the referee appointed in this proceeding has the same power to pass upon questions of the admissibility or exclusion of evidence as a referee appointed by the Supreme Court to try an issue of fact in an action. See Matter of Allemann, 1 Conn. 441. This matter is remitted to the referee to make such rulings as may be proper in the premises.

Decreed accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

4 Mills Surr. 280, 43 Misc. 475, 89 N.Y.S. 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-walker-nysurct-1904.

Opinion

Related

Cite This Page — Counsel Stack