Matter of Flynn

32 N.E. 767, 136 N.Y. 287, 49 N.Y. St. Rep. 388, 91 Sickels 287, 1892 N.Y. LEXIS 1747

• Court: New York Court of Appeals
• Decided: December 20, 1892
• Status: Published

Opinion

Per Curiam.

The order of the surrogate opening the decree of March 25, 1890, settling the accounts of the general guardian (father) of Lettie Leach Brown, was made on the petition of the respondents, who were purchasers on a partition sale of real estate of Gleason, one of the sureties on the guardian’s bond, without notice of any claim against the guardian on the part of the ward, and the land so purchased ■can be reached to satisfy the surrogate’s decree against the guardian, if the decree stands. The order opening the decree was made, as expressed therein, “ on the ground of fraud in said accounting,” and the General Term affirmed the order generally. The power of a surrogate to open his decree for fraud is within the power conferred upon that officer by section 2481 of the Code of Civil Procedure, and the exercise of this power is not subject to the limitations of time prescribed by sections 1282 and 1290. (Matter of Tilden, 98 N. Y. 434-444.) The petitioners had a standing to make the application. The bondsman, Wood, is insolvent and the land owned by the deceased surety, Gleason, being the only available resource for the collection of the decree, the petitioners are the persons aggrieved and could properly initiate the proceedings to set it aside. The surrogate has the power of a court of general jurisdiction to vacate his decrees (§ 2481, sub. 6), and relief may be granted as in the Supreme Court, “ upon the application of any one for sufficient reason in furtherance of justice.” (Ladd v. Stevenson, 112 N. Y. 325.) If there was any evidence presented to the surrogate, tending to show fraud in the accounting, his decision finding its existence having been affirmed by the General Term, this court is concluded from re-examining the question of fact. Our examination of the record lias satisfied us that there was evidence presented to the surrogate, which might properly be considered tending _ to support the conclusion that the accounting of the general guardian was collusive and that the account rendered by the guardian and accepted by the ward, upon which the decree was based, adjudging the liability of the guardian and fixing the amount at the sum of $2,353, omitted credits to which the guardian was entitled, and that this omission was for the purpose of swelling his liability to his ward so as to charge the sureties on their bond in excess of the just amount. The case under the order will involve a new accounting and a re-examination of the items which make up the guardian’s account. We refrain from expressing an opinion as to what charges or credits should enter into it. It is better to leave these questions unembarrassed by an opinion based on imperfect evidence.

Our duty is performed when we reach the conclusion that the charge of fraud was not wholly unsupported by evidence.

All concur.

Order affirmed.