In re the Final Judicial Settlement of the Account of Atkinson

New York Supreme Court

In re the Final Judicial Settlement of the Account of Atkinson

12 N.Y. St. Rep. 570

New York Supreme Court·Decided December 13, 1887·Published

Opinion

Pratt, J.

We think the order of July 6, 1887, was a sufficient appointment of John A. Clarry as referee to take the examination provided for in the order.

The object of the examination is clearly pointed out, and the order to “ attend before John A. Clarry, referee,” is a sufficient appointment of him as referee.

If the order had read, “referee hereby appointed,”probably the appellant would not contend that the order was not effectual to make the appointment.

We think the omitted words may well be implied.

The surrogate has ample power to order the examination and appoint a referee to take it. We think he has exercised the power effectually.

The fact that another proceeding is pending before the referee is no objection to the order.

No reason is shown why it should be vacated, and the <order refusing to vacate must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.

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Pratt, J.

We think the order of July 6, 1887, was a sufficient appointment of John A. Clarry as referee to take the examination provided for in the order.

The object of the examination is clearly pointed out, and the order to “ attend before John A. Clarry, referee,” is a sufficient appointment of him as referee.

If the order had read, “referee hereby appointed,”probably the appellant would not contend that the order was not effectual to make the appointment.

We think the omitted words may well be implied.

The surrogate has ample power to order the examination and appoint a referee to take it. We think he has exercised the power effectually.

The fact that another proceeding is pending before the referee is no objection to the order.

No reason is shown why it should be vacated, and the <order refusing to vacate must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.

In re the Final Judicial Settlement of the Account of Atkinson, 12 N.Y. St. Rep. 570 (N.Y. Super. Ct. 1887).

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12 N.Y. St. Rep. 570 (In re the Final Judicial Settlement of the Account of Atkinson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.